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STANDARD    LAW    SCHOOL    CASE    BOOKS 

AdiniiiiHtratlon    and    Government — Goodnow's   Cases   on    Government   and    AdniiniHtFa- 

tioii,  by  Frank  J.  Ooodnow,  Eaton  Professor  of  Administrative  Law  and   Municipal 

Science    in    Oolumljia    University.      1    volume    $2.50    net. 
Aseney — Meehem'n  Cases  on   the   Ijaw  of  Afteney,    by    Floyd    R.    Mechem,    Professor   of 

Law   in   the    Univi-rsity   of  Chicago.      1    volume   $S.OO  net. 
.XmerU-an    Administrative    Law — Goodnuu's    Cases    on    American    Administrative    Law 

fnclu(lln<>    Puhlii-  t)tlicers  and  Extraordinary  Legal  Remedies,   by   Frank   J.   Good- 

now.      1   \i>hune  $(i.OU  net. 
Appellate    l'ra<ti<e — Sunderland's   Cases   on    Appellate    Practice,    by    Edson    R.    Sunder- 
land,  Professor  in   the  University  of  Michigan  T.,aw  School.     ^J.SO  net. 
Bailments    and    Carriers — Goddard's    Cases    on    Bailments    and    Carriers,    by    Edwin    C. 

Goddard,    Professor   of   Law    in    the   University    of   Michigan.      1    volume   $:{.7r>   net. 
Code    Pleading — Hintons    Cases    Code   Pleading    Under    Modern    Codes,    by    Edwin    W. 

Hinton,    Professor   of   Law,    University   of   Missouri.      1    volume   $4.00   net. 
Code    Pleading — Sunderland's    Cases    on    Code    Pleading,    by    Edson     R.     Sunderland, 

Professor  in  the  University  of  Michigan  Law  School.  $4.. 50  net. 
Commercial  Law^ — Bays'  Cases  on  Commercial  Law  (in  preparation). 
Common    Law   Pleading — Slupp   and    Daish's   Cases  on   Common   Law   Pleading,   by   E. 

Richard   Shipp  and  John   B.   Daish.      1   volume  $2.50  net. 
Common   Law   Pleading — Sunderland's  Cases  on  Conunon  Law  Pleading,   by   Edson    R. 

Sunderland.    Professor   in    the   University   of   Michigan    Law   School.      $4.50   net. 
Contlict  of  Laws,  Cases.      See  International  Law. 
Constitutional    Law— ^Boyd's    Cases    on    American    Constitutional    Law,    by    C.    E.    Boyd. 

Second  edition  by  C.  E.  Boyd  $3.00  net. 
Criminal    Law.    Knowlton's    Cases    on    Criminal    Law,    by    Jerome    C.    Knowlton,    Mar- 
shall Professor  of  Law  in  the  University  of  Michigan.      1  volume  $3.00  net. 
Criminal    Procedure — Sunderland's    Cases    on    Criminal    Procedure,    by    Edson    R.    ^n- 

derland.   Professor  of  Law  in   the  University   of  Michigan  Law   School.     $4.50   net. 
Damages — Kus.sell's  Cases,   by   Isaac   Franklin   Russell.   Professor  of  Law   in   New  York 

University  Law  School.      1   volume  $4.00  net. 
Domestic  Relations — Holbrook's   Cases,    by   Evans   Holbrook,    Professor   of   Law   in   the 

University   of   Michigan.      (In   Preparation.) 
Equity  Pleading  and  Practice — Rush's  Cases,   by  G.  Fred   Rush.     $2.50. 
Equity   Pleading  and   Practice — Sunderland's   Cases  on   Equity   Pleading  and    Practice, 

by    Edson    R.    Sunderland,    Professor    in    the    University    of    Michigan    Law    School 

$4.50  net. 
Equity    Pleading   and    Practice — Tliompson's   Cases   on    Equity   Pleading   and    Practice, 

l>y  Bradley  M.  Thompson,  Professor  of  Law  in  University  of  Michigan.     $3.00  net! 
Evidence — Sunderland's    Cases    on    Evidence.      By    Edson    R.    Sunderland,    Professor    in 

th  '   University   of   Michigan    Law    School.      $4.50   net. 
Extraordinary    Legal    Remedies — G<K)dnow's    Cases    on    Officers,    including    Extraordi- 
nary Legal  Remedies,   by  Frank   J.   Goodnow  of  the  Law  Department  of  Columbia 

University.      1   volume   $5.00   net. 
International    Law — Dwyer's    Cases    Private    International    Law,    second    ed..    by    John 

\V    Dw-yer,  of  the  Law  Department,   University  of  Michigan.     $4.00  net. 
Negotij  ble    Instruments.    Bunker's    Cases    on    Negotiate    Instruments,    by    Robert    E. 

Bi  aker.  Professor  of  Law  in   the  University  of  Michigan.      1   volume  $4.00  net. 
Officer^ — Goodnow's   Cases   on    Law    of   Otli<-ers.    including    Extraordinary    Legal    Reme- 
dies,  by    Fnmk    J.    Goodnow,    of   the    Law   Department   of  Columbia    University.      1 

volume  $5.00  net. 
Partnership — .Mechem's  Cases  on    Partnership,    by   Floyd    R.    Mechem.      Second    edition 

by  Frank  L.  Sage,  Professor  of  Law  in  the  University  of  Michigan.     1  vol.  $3.50  net. 
Partnership— Enlarged    Edition,    Mechem's    Cases,    same    as    above    with    addition    of 

Supplement.      1    volume,    third    edition,    .$4. .50    net. 
Procedure — Sunderland's  Cases  on   Procedure,   7    volumes  $4. .50  each    (in    preparation). 
Properly — Rood's  Cases  on   Property.   Second    Edition,    by  John    R.    Rood,    Professor  of 

La  vv   in   the   University  of   Michigan.      1    volume  .$3.75   net. 
Suretyship — W'il.son's  Cases  on  Guaranty  and  Suretyship,  by  H.  H.  Wilson,  of  the  Law 

Department  of  the  Universit>-  of  Nebraska.      1   volume  .$4.00  net. 
Trial     Practice — Sunderland's    Cases    on    Trial    Practice,    by    Edson    R.    Sunderland    of 

the   Law  Department  of  the  University  of  Michigan.     $4.50   net. 
Taxation — (Goodnow's   Cases   on   Taxation.    Ity    Frank    J.    G^oilnow    of   the    Law    Depart- 

PK     t    of   rolumhia   I^niversity.      1    \f>hime    .$.5.00    net. 
Will.s —  Jates'    Ca.ses    on    Wills,    by    Henry    M.   Bates.   Dean    of    the    Law    Department. 

Un  versify   of  Michigan.      1   volume.      (In   preparation.) 


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Vcrnt-y— Bay».  A  handbook,  by  Alfred  W.  Bays, 
ITofrssor  of  Law.  Northwestern  University 
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VgentT  OutUiip*— Mei-hem  Outlines  of  Agency,  by 
Klovd  R.  Mechem.  Profe-ssor  of  Law  m  the 
liiixersity    of    Chicajfo.       Second     Edition.       4.-00. 

\»ency— Mechem  on  .^geucy.  A  treatise  by  Floyd 
{;     Mechtni.      *5.0«    net. 

\m-riran    Law— Andrews'    American    Law.      Second 
Kditlon    bv    J.    D.    Amirews.       2    vols.    !(;i..OV. 
.-^aiMi.    1    vol.    od..    *r>00    net. 


Ktitiitv   Pleading  anil   Practice — Van  Zile,  by  Philip 

T.    Van    Zile.      $5.00   net. 
Kquity    Pleading    and    Practice — Rush.      A    concise 

work  by  G.     Fred  Rush.      $2.50  net. 

Or  Text  and  Cases    combined    $4.50. 

Evidence — Hammon.  A  treatise,  by  Louis  L.  Ham- 
mon.      $5.00   net. 

Evidence — Hughes.  An  illustrated  treatise,  by 
Thomas  W.  Hughes.  Professor  of  Law  in  the 
University  of  Illinois.     $4.00  net. 

Evidence — Kennedy.  A  practical  Codification  by 
Richard    Lee   Kennedy.      $2.00   net. 


Bailments  and   Carriers — Goddard's  Outlines,  by   E. 

(Joddard.    Professor   of    Law   in    the    University     Kvidence — Keynolds   Theory    of    Evidence,    by    Will 

iaiii    Reynolds.      $2.00   net. 


.if    .Mithigun.       $2.50    net. 
Itailment*    and    Carrier*— Van    Zile.    by    Phijip    T 


in    '/.lie.    l>ean    D.  troit    College    of   Law. 
K.l     $5.00. 


Second 


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Banks     and     Banking 
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A     handbook     by 


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Evidence — Reynolds.     Trial  Evidence  and  Cross  Ex- 
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Insurance — Bays.  A  handbook,  by  A.  W.  Bays.  $1.50. 

Insurance — Kerr.      $5.00. 

International    Law — Bordwell's    Laws   of   War.      By 

"W.     P.     Bordwell,     Professor    of    Law, ,.  University 
of    Missouri.      $3.50    net. 


"^'^om^S'arie^^.?u"V;a^o7'E;gland  by   VvMU-,,^^^  Law— Taylor.         The       Origin       and 

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elgn  words  and  phrases  appearing  in  the  text 
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A     handbook     by 


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(  arrlers — Hutchinson.    The  Law  of  Carriers.     Second 

Ed.     by     Fl.<yd     R.     Mechem.      $4.00. 

Code    Pleading — Phillips.      Principles    of    Pleadings  ..^  x„.  wx.w.t- 

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(  iintnu-ttt — Anson.       Second     American    Edition,    by  I 

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OASES 


09  THB 


LAW  OF  AGENCY 


SELECTED 
BY 

FLOYD   R.   MECHEM 

Author  of  Mechem  on  Agency,  Mechem  on  Public  Offickbs, 

ETC.;    Tappan   Professor   of    Law   in   thb 

UMifERsiiY  OF  Michigan 


CHICAGO 

CALLAGHAN    &    COMPANY 
1893 


Entered  according  to  Act  of  Congress,  In  the  year  1898,  by 

FLOYD  R.   MECHEM 

In  the  office  of  the  Librarian  of  Congress,  at  Washington. 


P 


V 


PEEFAOE. 


The  following  collection  of  cases  has  been  prepared,  at  the 
request  of  several  leading  edncators,  to  accompany  the  writer's 
treatise  on  the  law  of  agency,  the  purpose  being  to  illustrate  the 
text  by  object  lessons  gathered  from  the  reports.  Nothing  in  the 
way  of  annotation  has  been  attempted,  beyond  an  occasional  refer- 
ence to  similar  cases,  as  it  is  thought  that  the  text  of  the  treatise 
Bupplies  all  that  is  needed  in  that  direction.  To  make  a  selec- 
tion of  cases  from  the  great  number  upon  the  subject  is  a  difllcult 
task  and  one  in  reference  to  which  opinions  will  necessarily  diiler. 
The  attempt  here  has  been  to  select  such  as  contained  clear  state- 
ments of  the  principles  or  furnished  striking  illustrations  of  them, 
and  were  not  too  much  involved  with  other  matters  or  too  long  for 
reproduction.  Some  cases  which  might  otherwise  have  appeared 
have  been  omitted  because  the  substance  of  them  has  been  suffi- 
ciently stated  in  the  text  or  notes  of  the  treatise.  In  many  cases 
matters  irrelevant  to  this  subject  have  been  omitted.  Cases  on 
the  law  of  master  and  servant  have  also  been  omitted,  as  they 
sufficiently  appear  in  other  available  collections.  Many  of  the 
cases  given  are  too  recent  to  constitute  what  may  be  termed  lead- 
ing cases,  nor  has  there  been  any  attempt  to  include  all  that  might 
properly  be  so  designated.  As  the  volume  is  intended  primarily 
for  the  use  of  students,  for  whom  the  making  of  their  own 
abstracts  is  a  most  valuable  exercise,  the  cases  are  printed  with- 
out head  notes.  It  is  believed,  however,  that  they  will  be  thereby 
rendered  no  less  useful  to  others  who  may  desire  to  consult  them, 
as  a  full  index  furnishes  a  ready  guide  to  their  contents. 

Acknowledgments  are  especially  due  to  Professor  Francis  M. 
Bnrdick,  of  Columbia  College,  who  kindly  volunteered  to  furnish 

a  list  of  the  cases  used  by  him  in  that  institution. 

F.  R.  M. 
University  op  MicmaAN, 

Ann  Arbor,  October  1,  1893. 

iu 


OASES  EEPOETED. 


PAOB 

Addison  vs.  Gandasequi,  4  Taunt.  673 547 

Ahekn  vs.  Baker,  34  Minn.  98 288 

Alworth  vs.  Seymour,  42  Minn.  526 _  314 

Appleton  Bank  vs.  McGilvray,  4  Gray,  518 229 

Ash  vs.  Guie,  97  Penn.  St.  493 45 

Atlke  vs.  Fink,  75  Mo.  100 14 

Baker  vs.  New  York  Bank,  100  N.  Y.  81 596 

Baldwin  vs.  Burrows,  47  N.  Y.  199 196 

Bank  of  Batavia  vs.  New  York,  etc.,  R.  R.  Co.,  106  N.  Y.  195 576 

Bank  of  Owensboro  vs.  Western  Bank,  13  Bush,  526 206 

Barnard  vs.  Coffin,  141  Mass.  307 249 

Bass  Furnace  Co.  vs.  Glasscock,  82  Ala.  453 291 

Bell  vs.  McConnell,  37  Ohio  St.  396. 538 

Bell's  Gap  Railway  Co.  vs.  Christy,  79  Penn.  St.  54 131 

Benjamin  vs.  Benjamin,  15  Conn.  347 72 

Benjamin  vs.  Dockham,  134  Mass.  418 71 

Bennett  vs.  Gillette,  3  Minn.  423 79 

Beymer  vs.  Bonsall,  79  Penn  St.  298 554 

Bickford  vs.  Menier,  107  N.  Y.  490 93 

Billings  vs.  Mason,  80  Me.  496 408 

Birdsall  vs.  Clark,  73  N.  Y.  73 231 

Blackstone  vs.  Buttermore,  53  Penn.  St.  206 255 

BoiNEST  vs.  Leignez,  2  Rich.  L.  464 655 

Bolton  Partners  vs.  Lambert,  41  Ch,  Div.  295 222 

Boston  vs.  Simmons,  150  Mass.  461 698 

Bradford  vs.  Kimberly,  3  Johns.  Ch.  431 523 

Bbeckenridge  vs.  Lewis,  84  Me.  349 103 

Briggs  vs.  Partridge,  64  N.  Y.  357 436 

Brockway  vs.  Mullin,  46  N.  J.  L.  448 419 

Brown  vs.  Bradlee,  156  Mass.  28 454 

Bryant  vs.  Moore,  26  Me.  84 855 

Bush  vs.  Cole,  28  N.  Y.  261 650 

Butler  vs.  Maples,  9  Wall.  766 340 

Byington  vs.  Simpson,  134  Mass.  169 658 

Byrd  vs.  Hughes,  84  111.  174 23 

Camden  Sapb  Deposit  Co.  vs.  Abbott,  44  N.  J.  L.  257 876 

T 


vi  Cases  Repobtbd. 

PAGE 

Chambers  vs.  Seat,  73  Ala.  372 252 

Claflin  vs.  Lenheim,   ■>'}  N.  Y.  3U1 294 

Clark  vs.  Cumming,  77  Ga.  G4 668 

Cleveland  vs.  Pearl,  63  Vt.  127 556 

Combs  vs.  Scott,  12  Allen,  493 146 

Constant  vs.  University  of  Eochester,  111  N.  Y.  604 560 

Cook  vs.  Tullis,  18  Wall.  332 160 

COOLEY  vs.  Betts,  24  Wend.  203 702 

CORT  vs.  Lassard,  18  Oreg.  221 816 

Cox  vs.  Hoffman,  4  Dev.  &  Bat.  180 89 

Craighead  vs.  Peterson,  72  N.  Y.  279 873 

Crane  vs.  Gruenewald,  120  N.  Y.  274 87 

CUMMENS  vs.  Heald,  24  Kans.  600 247 

D'Arcy  vs.  Lyle,  5  Binney,  441 642 

Davis  vs.  Hamlin,  108  lU.  39 461 

Davis  vs.  Kobe,  36  Minn.  214 700 

Davison  vs.  Holden,  55  Conn.  103 47 

Delaney  vs.  Eochereau,  34  La.  Ann.  1123 514 

Deakin  vs.  Underwood,  37  Minn.  98 68 

Devall  vs.  Burbridoe.  4  Watts  &  Serg.  805 499 

DiERiNQER  vs.  Meyer,  42  Wis.  311 289 

Dodge  vs.  Hopkins,  14  Wis.  686 215 

Dolan  vs.  Thompson,  126  Mass.  183 684 

DURKEE  vs.  GUNN.  41  Kans.  496 812 

Druey  vs.  Foster,  2  W^all.  24 120 

Eberts  vs.  Selover,  44  Mich.  519 150 

Elkhart  County  Lodge  vs.  Crary,  98  Ind.  238 18 

Exchange  National  Bank  vs.  Third  National  Bank,  112  U.  S. 

276 239 

Fairlie  vs.  Fenton,  L.  E.  5  Excbeq.  169. 669 

Farmers'  &  Mechanics'  Nat'l  Bank  vs.  Kino,  57  Penn.  St.  202..  590 

First  National  Bank  vs.  Mt.  Tabor,  52  Vt.  87 53 

Forbes  vs.  Hagman,  75  Va.  168 122 

Foster  vs.  Bates,  12  Mees.  &  Wels.  225 127 

Feiedlandeu  vs.  Texas  &  Pacific  Eailway  Co.,  130  U.  S.  416._.  579 

Gardner  vs.  Gardner.  .'>  Cush.  4S3. 100 

Gardner  vs.  Ggden,  22  N.  Y.  327 465 

Gilbert  vs.  How,  45  Minn.  121 380 

Goodrich  vs.  McDonald,  112  N.  Y.  157 633 

Grady  vs.  American  Central  Ins.  Co.,  60  Mo.  116 _  238 

Graves  vs  iiuuTON,  38  Minn.  6G 82 

Greenfield  Bank  vs.  Crafts,  4  Allen,  447 110 

Greenfield  Savings  Bank  vs.  Simons,  133  Mass.  415 47P 

Griggs  vs.  Swift,  82  Ga.  393 537 

Hamlin  vs.  Sears,  82  N.  Y.  327 136 


Gases  Hepobted.  vii 

PAOK 

Hakralson  vs.  Stein,  60  Ala.  847 236 

Harris,  vs.  Nickerson,  L.  R.  8  Q.  B.  286 659 

Hatch  vs.  Squires,  11  Mich.  185 100 

Hatch  vs.  Taylor,  10  N.  H.  538 345 

Hatcher  vs.  Comer,  73  Ga.  418 608 

Hawkins  vs.  McGroarty,  110  Mo.  546 107 

Hawley  vs.  Keeler,  53  N.  Y.  121 50 

BLAlZard  vs.  Spears,  4  Keyes,  469 182 

Heath  vs.  Nutter,  50  Me.  378 91 

HE^^RY  vs.  Heeb,  114  Ind.  275..  115 

Herrick  vs.  Gallagher,  60  BarY».  566 512 

Heyn  vs.  O'Hagen,  60  Mich.  150 186 

HiBBARD  VS.  Peek,  75  Wis.  619 403 

HiGQiNS  vs  Lodge,  68  Md.  229 656 

HiGGiNS  vs.  Senior,  8  Mees.  &  Wels.  834 450 

HOBSON  vs.  Hassett,  76  Cal.  203 442 

Howard  vs.  Daly,  61  N.  Y.  3G2 526 

Howe  Machine  Co.  vs.  Clark,  15  Kans.  493 107 

Hubbard  vs.  Tenbrook,  124  Penn.  St.  291 807 

Hunt  vs.  Rousmanier,  S  "^INHieat.  174 822 

Huntington  vs.  Knox,  7  Cush.  371 587 

Huntley  vs.  Mathias.  90  N.  C.  101 408 

Hyatt  vs.  Clark,  118  N.  Y.  563 177 

Innerarity  vs.  IMerchants'  National  Bank,  139  Mass.  883 509 

Insurance  Co.  vs.  Davis,  95  U.  S.  425 330 

Insurance  Co.  vs.  Kiqer,  103  U.  S.  353 686 

Lnsurance  Co.  vs.  McCain,  96  U.  S.  84 209 

Ironwood  Store  Co.  vs.  Harrison,  75  Mich.  197 125 

Ibvinis  vs.  Watson,  L.  R.  5  Q.  B.  Div.  414 550 

Jackson  vs.  National  Bank,  —  Tenn.  — 415 

Jacobs  vs.  Warfield,  23  La.  Ann.  395 2S7 

Jett  vs.  Hempstead,  25  Ark.  462 496 

Johnson  vs.  Hurley,  nn  Mo.  513 84 

Johnson  vs.  Martin,  11  La.  Ann.  27 495 

Johnson  vs.  Stone,  40  N.  H.  197 78 

Jones  vs.  Atkinson,  68  Ala.  167 103 

Kayton  vs.  Barnett,  116  N.  Y.  625 553 

KlEWERT  vs.  RiNDSKOPF,  46  Wis.  481 407 

KiLLiNGSWORTH  VS.  PORTLAND  TRUST  Cc,  18  Ore.  351 40 

King  vs.  Sparks,  77  Ga.  285 418 

Kirk's  Appeal,  87  Penn.  St.  243 C21 

Knapp  vs.  Alvord,  10  Paige,  205 328 

Knight  vs.  Clark,  48  N.  J.  L.  23 434 

KOMOROWSKi  vs.  Krumdick,  56  Wis.  23 413 

Keoeqeb  vs.  PrrcAiRN,  101  Penn.  St.  811 _  001 

Laverty  vs.  Snethkn,  68  N.  Y.  522 486 


viii  Cases  Reported. 

PAOH 

Leach  vs.  Hannibal  &  St.  Joseph  R.  E.  Co.,  86  Mo.  27 480 

Leuman  vs.  Pritcuett,  84  Ala.  512 693 

Leroy  vs.  Beard,  8  How.  451 3^2 

Levi  vs.  Booth,  58  Md.  305 -  391 

Lewis  vs.  Atlas  Mut.  F,  Ins.  Co.,  61  Mo.  534 269 

Lewis  vs.  Brehme,  33  Md.  412 706 

Lewis  vs.  Tilton,  64  Iowa,  220 510 

Liddell  vs.  Chidester,  84  Ala.  508 -  535 

Liebscher  vs.  Kraus,  74  Wis.  387 -  448 

Long  vs.  HART^VELL,  34  N.  J.  L.  116  92 

Loudon  Savings  Fund  Society  vs.  Hagerstown  Sav.  Bank,  36 

Penn.  St.  498 871 

Lucas  vs.  Bank  of  Darien,  2  Stew.  280 27 

Lumpkin  vs.  Wilson,  5  Heisk.  555 390 

Lyon  vs.  Kent,  45  Ala.  656 37 

Lyon  vs.  Pollock,  99  U.  S.  668 878 

Massachusetts  &  Southern  Const.  Co.  vs.  Township  of  Gill's 

Creek,  48  Fed.  Rep.  175 - 646 

Matthlsskn  &  Weighers  Reflninq  Co.  vs.  McMahon's  Admr.,  38 

N.  J.  L.  536 - 335 

Mayor,  etc.,  of  Salford  vs.  Lever,  (1891)  1  Q.  B.  168 _  601 

McArthur  vs.  Times  Printing  Co.,  48  Minn,  319 128 

McClintock  vs.  South  Penn  Oil  Co.,  146  Penu.  144 219 

McClure  vs.  Herring.  70  Mo.  18 429 

Mc'RACKEN  vs.  San  Francisco,  16  Cal.  591 109 

McGraft  vs.  Rugee,  60  Wis.  408 717 

McIntyre  vs.  Park,  11  Gray,  102 l'^' 

McKindly  vs.  Dunham.  55  Wis.  515 ^^ 

McLaren  vs.  Hall,  20  Iowa,  297 77 

McNeil  vs.  Boston  CHAwr-ER  of  Comimerce,  154  Mass.  £77 63 

Mnxs  vs.  Mills,  40  N.  Y.  543.. 17 

Missouri,  ex  rel.  Walker  vs.  Walker,  125  U.  S.  839 277 

MosNESS,  Matter  of,  39  Wis.  509 613 

Moulton  vs.  Bowker,  115  ^Jass.  86 — —  619 

Naltner  vs.  Bolan,  1(8  Ind.  500 623 

Nash  vs.  Mitchell,  71  N.  Y.  199 33 

New  York  Iron  Mine  vs.  Negaunee  Bank,  39  Mich.  644 423 

Nixon  vs.  Bogin,  26  s.  c.  611 492 

Norton  vs.  Cowell,  65  Md.  359 281 

Osbornt:  vs.  Morgan,  130  Mass.  102 618 

Page  vs.  Wells,  87  Mich.  415 493 

Passano  vs.  Acosta,  4  La.  26 490 

Paterson  vs.  Gandasequi,  15  East.  62 545 

Patterson  vs.  Lh>1'Incott,  47  N.  J.  L.  457 507 

I^OPLE  VS.  Township  Board.  11  Mich.  222 459 

PETEits  vs.  Farnswortii,  15  Vt.  155 887 

Pkterson  V8  CuiuaXKNSiiN,  26  Minn.  877 334 


Cases  Bepohted.  iz 

PA  OH 

Phelps  VS.  Sttllivan,  140  Mass.  86..... 101 

Phillips  vs.  Mom,  69  111.  155 671 

PiCKERT  vs.  Makston,  68  Wis.  465 - 411 

PiNKHAM  VS.  Crocker,  77  Me.  563 676 

Plant  vs.  Thompson,  48  Kan.  664 666 

POLB  vs.  Lease,  83  L.  J.  Ch.  155 81 

Reeve  vs.  First  National  Bank,  54  N.  J.  L.  203 446 

Regina  vs.  Walker,  Dearsley  &  Bell,  600 1 

Reynolds  vs.  Fi.eming,  30  Kans.  106 615 

Rhoades  vs.  Blackiston,  106  Mass.  334 584 

Rhodes  vs.  Forwood,  1  App.  Cas.  256 259 

Rice  vs.  McLarren,  42  Me.  157 190 

Rice  vs.  Wood,  113  Mass.  133 12 

Roberts  vs.  Rumlet,  58  Iowa,  301 143 

Rochester  vs.  Levering,  104  Ind.  563 478 

RocKFORD,  etc.,  R.  R.  Co.  VS.  Sage,  65  111.  828 134 

RowE  VS.  Rand,  111  Ind.  206 257 

School-District  vs.  ^tna  Insurance  Co.,  62  Me.  830 194 

Scott  vs.  Middleton,  etc.,  R.  R.  Co.,  86  N.  Y.  200 148 

Shoninger  vs.  Peabody,  57  Conn.  42 -  172 

Sibbald  vs.  Bethlehem  Iron  Co.,  83  N.  Y.  878 301 

Simmons  vs.  More,  100  N.  Y,  140 605 

Singer  Mfg.  Co.  vs.  Rahn,  132  U.  S.  518 8 

Smith  vs.  Clews,  105  N.  Y.  283 396 

Smith  vs.  Tracy,  36  N.  Y.  79 154 

Standard  Oil  Co.  vs.  Gilbert,  84  Ga.  714 273 

St.  Andrews  Bay  Land  Co.  vs.  Mitchell,  4  Fla.  193 26 

Stanton  vs.  Embrey,  93  U.  S.  548 631 

Stephens  vs.  Elwall,  4  Maule  &  Sel.  259 226 

St.  Johnsbury  etc.,  R.  R.  Co.  vs.  Hunt,  55  Vt.  570 608 

Stout  vs.  Smith,  98  N.  Y.  25 623 

Talcott  vs.  Chew,  27  Fed.  Rep.  273 689 

Thacher  vs.  Pray,  113  Mass.  291 201 

Thomas  vs.  Joslin,  30  Minn.  888 427 

Thompson  vs.  Davenport,  9  B,  &  C.  78 547 

Thompson  vs.  Kelley,  101  Mass.  291 --  653 

TowLE  vs.  Leavitt,  23  N.  H.  360 358 

Trueblood  vs.  Trueblood,  8  Ind.  195 29 

Turner  vs.  Goldsmith  (1891)  1  Q.  B.  544 266 

Vescelius  vs.  Martin,  11  Colo.  391. 423 

Vicksburg  &  Meridian  Railroad  vs.  O'Brien,  119  U.  S.  99 572 

Vinton  vs.  Baldwin,  88  Ind.  104 664 

Wakefield  vs.  Fargo,  90  N.  Y.  218... 4 

Wallace  vs.  Floyd,  29  Penn.  St.   184 525 

Warner  vs.  Martin,  11  How.  209 6'8 

Watteau  vs.  Fenwick,  (1893)  1  Q.  B.  846 369 


X  Cases  Refokted. 

PAOB 

Webb  vs.  Sinxn,  80  Ch.  Div.  192 661 

Weber  vs.  Bkidgman,  113  N.  Y.  600 331 

Weeks  vs.  Wayne  Circuit  Judges,  73  Mich.  256 648 

Weisbrod  vs.  Railway  Co.  18  Wis.  35 - 31 

Wheeler  vs.  McGuire,  86  Ala.  898 362 

Wheeler  vs.  Northwestern  Sleigh  Co.  89  Fed.  Rep.  347 138 

Wheeler  &  Wilson  Mfg.  Co.  vs.  Aughey,  144  Penn.  St.  393 152 

Whitney  vs.  Merchant's  Union  Express  Co.,  104  Mass.  152 484 

Whitney  vs.  Wyman,  101  U.  S.  392 452 

Wilcox  &  Gibbs  Sewing  [Machine  Co.  vs.  Ewing,  141  U.  S.  627.  283 

Wilson  &  Greig,  In  re,  12  Fed.  Rep.  235 638 

Wilson  vs.  Daile,  6s  N,  H.  392 526 

Wilson  vs.  Owens,  16  L.  R.  Ir.  225 9 

Woodward  vs.  Harlow,  28  Vt.  338 165 

230  Gases. 


OASES  CITED 

m  OPINIONS,  BRIEFS  AND  NOTEa 


A. 

PAOB 

Abbe  VS.  Roofl,  8  McL.  106 6:i0 

Abbott  vs.  Hapgood,  150  Mass.  248.129, 133 

Abbott  VB.  Rose,  62  Me.  194 105 

Aberdeen  R.  R.  Co.  vs.  Blakie,  1  Macq. 

461 472 

Abrams  vs.  Sheeban,  40  Md.446 658 

Ackerman  vs.  Ackerman,  14  Abb.  Pr. 

229 643 

Adams  vs.  Boies,  ~4  Iowa,  96 414 

Adams  vs.  Fox,  40  Barb.  443 641 

Adams  vs.  Hannibal,  etc.  K.  R.  Co., 

74  Mo.  553 575 

Adams  vs.  Mills,  60  N.  Y.  539 179 

Adams  vs  Paige,  7  Pick.  543 699 

Adams    vs.    Pittsburgh    Ins.    Co.,  95 

Pean.  848 406 

Adams  vs.  Power,  52  Miss.  828 169 

Adams  Express  Co.  vs.  Trego,  35  Md. 

47 290,377 

Adams  Mining  Co.  vs.  Senter,  26  Mich. 

73 540 

Adamson  vs.  Jarvis,  4  Bing.  66 228 

Addison  vs.  Gandeseqai,  4  Taunt.  674.  648 
.^tiia   Ins.  Co.  vs.  Alton  City  Bank, 

25  ill.  24J 239 

.ffitna  Ins.  Co.  vs.  Church,  21  Ohio  St. 

492 483 

Agricultural    Bank    vs.   Commercial 

Bank,  7  S.  &  M.  592 240 

Ahern  vs.  Goodspeed,  72  N.  Y.  108 412 

Akin  vs.  VVasson,  24  N.  Y.  483 6 

Alba  vs.  Morarity.  36  La.  680 876 

Albany  vs.  Cuuiifif,  2  Comst.  165 520 

Albro  vs.  Agawam  Canal,  6  Cueh.  75..  518 

Albro  vs.  Jaquiih,  4  Gray,  99 618 

Aldrich  vs.  Cooper,  8  Ves.  383 663 

Alexander  vs.  Alexander,  2  Ves.  640..  428 

Alexander  vs.  Gibson,  2  Camp.  555 887 

Alexander  vs.  J(  ne.s,  64  Iowa,  3iJ7 180 

Alexander  vs.  Northwestern  Univer- 
sity, 57Itid.  466 540,  665 

All  Saints  Church  vs.  Lovett,  1  Hall, 

m 388 


PAOB 

Allen  vs.  Merchants'  Bank,  23  Wend. 

215 240,241 

Allen  vs.  Ogden,  1  Wash.  174 38, 360 

Allen  vs.  Suydam,  20  Wend.  321 246 

Allen  vs.  Withrow,  110  U.  8. 128 132 

American  Linen  Tb-  Co.  vs.  Worten- 

dyke,  24  N.  Y.  650 297 

Ames  vs.  Union  Ry.,  117  Mass.  541 620 

Amon  vs.  Fearon,  9  Ad.  &  E.  548 290 

Ancona  vs.  Marks.  7  H.  &  N.  686... 225,  226 

Anderson  vs.  Vox,  16  Xeb.  10 667 

Anderson  vs.  Moncrieff,  3  Des  126 498 

Andrews  vs.  Kneeland,   fl  CoW    350 

354,384,650 

Andrews  vs.  Morse,  13  Conn.  444 649 

Andrusvs.  Howard,  36  Vt.  248 610 

Angle  vs.  Insurance  Co.,  93  U.  S.  330..  105 

Anonymous,  1  Stra.  527 76 

Archard  vs.  Hornor,  3  C.  &  P.  849 630 

Armfleld  vs.  Nash,  31  Miss.  361 534 

Armitagevs.  Widoe,  36  Mich.  124.. 81, 119 
Armour  vs.  Mich.  Cent.  R.  Co.,  65  N. 

Y.  11 677 

Armstrong  vs.  Lowe,  76  Cal.  616 811 

Armstrong  vs.  Stokes,  L.  R.  7  Q.  B. 

598 653 

Armstrong  vs.  Wann,  29  Minn.  136 667 

Arnold  vs.  Spurr,  130  Mass.  347 78 

Arnott  vs.  Webb.  1  Dill.  363 618 

Arrington  vs.  Cary,  5  Baxt.  609 _  667 

Arrott  vs.  Brown,  6  Whart.  9 600 

Ash  vs.  Guie,  97  Penn.  493 611 

Ashburner  vs.  Smock,  81  Penn.  St.  53.    20 

Ashe  vs.  DeRossett,  6  Jones,  299 697 

Ashley  vs.  Harrison,  Peake,  191 611 

Aspdin  vs.  Austin,  5  Q.  B.  671 866,  630 

Atkin  vs.  Acton,  4  C.  &  P.  208 291 

Atkins  vs.  Brown,  59  Me.  90 448 

Atlantic  Bank  vs.  Savery,  82  N.  Y.  291.  564 
Atlantic  National  Bank  vs.   Harris, 

118  Mass.  147 570 

Atlen  vs.  Bartholomew,  69  Wis.  43...  218 
Attorney  General  vs.  Davy,  2  Atk.  212 

65,69 


Xll 


Oases  Cited. 


PAGE 

Attnu  vs.  Patterson,  68  Md,  22e...J255.  311 
Attwood  va.  Munnings,  7  B.  &  C.  278 

374,375,  377 

Atwood  V8.  Small,  6  C.  &  F.  449 203 

Au^^tin  vs.  Helms,  65  N.  C.  560 58 

Ayer  vs.  Bell  Mfg.  Co.,  147  Mass.  46...  68 
Ayrault  vs.  Pacific  Bank,  47  N.  Y.  570  240 

B. 

Babb  vs.  Reed,  5  Rawle,  151 ^..    46 

Bkbcock  vs.  Lamb,  1  Cow.  233 58 

Bagnall  vs.  Carlton,  6  Ch.  D.  371 603 

Bailey  vs.  Bagley,  19  La.  Ann.  172 630 

Balrd  vs.  Mayor,  86  N.  Y.  567. 834 

Baird  vs.  Shipman,  133  111.  16 517 

Baldwin  vs.  Bank  of  Louisiana,  1  La. 

Ann.  13 240 

Baldwin  vs.  Burrows,  47  N.  Y.  199 141 

Baldwin  vs.  Leonard,  39  Vt.  360 134 

Baldwin  vs.  Merrill,  8  Humph.  133.390,620 

Baldwin  vs.  Munn.  2  Wend.  399 651 

Ball  vs.  Danstervillc,  4  T.  R.  313 101 

Ballingalls  vs.  Gloster,  3  East,  481  ....  246 
Ballston  Spa  Bank  vs.  Marine  Bank, 

16  Wis.  130 451 

Baltimore  Turnpike,  In  re,  5  Binn.  481  58 
Baltzen  vs.    Nicolay,    63   N.    Y.  467 

503,506,508 

Bank  vs.  Bank,  75  N.  C.  534.  409 

Bank  vs.  Bugbee,  1  Abb.  Ch.  App.  86..  414 

Bank  vs.  Butler,  41  Ohio  St.  519 240 

Bank  vs.  Kimball,  10  Cush.  373 105 

Bank  vs.  Neal,  32  How.  96 105 

Bank  vs.  Vanderhorst,  32  X,  Y.  353....  332 
Bank  of  Beloit  vs.  Beale,  34  N.  Y.  473.  156 
Bank  of  Louisville  vs.  First  National 

Bank.  8  Baxt.  101 239 

Bank  of  Metropolis  vs.Guttschlick,  14 

Pet.  37 26 

Bank  of  Mobile  vs.  Andrews,  2  Sneed, 

640 390 

Bank  of  Northern  Liberties  vs.  Jones, 

42Penn.  536 693 

Bank  of  Orleans  vs.  Smith,  3  Hill.  560  240 
Bank   of    Ht.   Mary's  vs.   Calder,  3 

Strobh.4C'3 209 

Bank  of     Utica    vs.    McKinster,   11 

Wend   473 248 

Bank  of  U.  S.  vs.  Davis,  2  Hill,  451 

180,  424,  563 

Bank  of  Washington  vs.  Triplett,  1 

Pet.  25 241-245 

Banks  vs.  Evans,  10  S.  &  M.  35 619 

Banner  Tobacco  Co.  vs.  Jenison,  48 

Mich.  459 29 

Barinii  vs.  Corrie,  3  B.  &  Aid.  143  385,  402 
Barker  vs.  Meciianics'  Bank,  3  Wend. 

»♦ 439 

Barker  vs.  St.  Qulntin,  12  M.  &  W.  441 
634,  636,  646 


PAGB 

Bamett,  Ex  parte,  7  Jur.  116 476 

Barnes  vs.  Roberts,  5  Bosw.  73 304 

Barr  vs.  Schroeder,  33  Cal.  609 253,  315 

Barry  vs.  Merchants'  Ex.  Co.,  1  Sandf . 

Ch.  280 43 

Barry  vs.  Schmidt,  57  Wis.  173 665 

Bartlet  vs.  Tucker,  104  Mass.  336 116 

Bartlett  vs.  HamUton,  46  Me.  435 626 

Bartlett  vs.  Palmer,  8  N.  Y.  398 238 

Barwick  vs.  English  Joint  Stock  Bank 

L.  R.  3Ex.  359 682 

Basford  vs.  Pearson,  9  Allen,  387 103 

Baston  vs.  Clifford,  68  111.  67 692 

Bateman  vs.  Phillips,  15  East,  373 457 

Battelle  vs.  Pavement  Co.,37  Minn.  89  130 

Batty  VB.  Oars  well,  2  Johns.  48 354,  650 

Baudouine  vs.  Grimes,  64  Iowa,  370...  298 

Baugh  vs.  Kilpatrick,  54  Penn.  84 659 

Bay  vs.  Cook,  2  Zab.  343 608 

Bayley  vs.  Wilkins,  7  C.  B.  886 544 

Bayliffe  vs.  Bntterworth,  1  Ex.  426. 412 

Baynard  vs.  Norris,  5  Gill,  483 658 

Baxter  vs.  Lamont,  60  111.  237 668 

Beach  vs.  Branch,  57  Ga.  363 544 

Beal  vs.  Polhemus,  67  Mich.  130_ 23 

Beals  vs.  Allen,  18  Johns.  363 159,  854 

Bean  vs.  Pioneer  Min.  Co.,  66  Cal.  451 

444,  448,  450 

Beanbien  vs.  Ponpard,  Har.  Ch.  206...  460 
Beaugillott  vs.  CaUemer,  33  Slrey  322 .  517 

Beck  vs.  Thompson,  4  H.  <&  J.  531  715 

Beckham  vs.  Drake,  2  H.  L.  Cas.  606..  531 

Beckham  vs.  Drake,  9  M.  &  W.  79 

_ 29,  438,  439 

Beckwith  vs.  Sibley,  11  Peck.  483 685 

Bedford  R.  R.  Co.  TS.  Bowser,  48  Perm. 

2» 132 

Beebe  vs.  Mead,  83  N.  Y.  687 718 

Beekman,  In  re,  I  Abb.  Pr.  449 6 

Beers  vs.  Hendrickson,  45  N.  Y.  666 620 

Beeson  vs.  Beeson,  9  Penn.  384. 474 

Eeeston  vs.  Collyer,  4  Bingh.  809 276 

Beidman  vs.  Goodell,  56  Iowa,  593. 145, 175 

Bell  vs.  Cunningham,  3  Pet.  69 140, 159 

Bell  vs-  Day,  83  N.  Y.  165 168 

Bell  vs.  Gardiner,  4  M.  &  Q.  11 231 

Bell  vs.  Josselyn,  8  Gray,  309 519 

Bell  vs.  Kaiser,  60  Mo.  160 667 

Bell  vs.  McConnell,  37  Ohio  St.  396....  666 
Bellefontalne  Ry.  Co.  vs.  Hunter,  32 

Ind.  335 676 

Benedict  vs.  Lansing,  6  Den.  283 423 

Benedict  vs.  Smith,  10  Paige,  126 619 

Bennecke  vs.  Insurance  Co.,  105  U.  S. 

3fi0 140 

Bennett,  Ez  parte,  10  Ves.  881 476 

Bennett  vs.  Judson,  21  N.  Y.  238.166,157,203 

Bennett  vs.  Stout,  98  111.  47 78 

Bennett  vs.  Vansyckle.  4  Duer,  462....  464 
Bennington  vs.  Parks,  66  Vt.  178 «S 


Cases  Cited. 


Xlll 


PAGB 

Bentley  vs.  DoRprett,  61  Wis.  224  ...410,  411 
Bergen  vs.  Beunett,  1  Caiue's  Cas.  19 .  473 
Bergen  vs.  Bennett,  1  Caine's  Cas.  1..  830 

Berkey  vs.  Judd,  23  Minn.  287 70,  381 

Berkshire  Glass  Co.  vs.  Wolcott,  2  Al- 
len, 227 176 

Berry  vs.  Barnes,  23  Ark.  411 414 

Berry  vs.  Williamson,  8  How.  495 683 

Besse  vs.  Dyer,  9  Allen,  151 455 

Bibb  VB.  Allen,  149  U.  S.  481 544 

Billings  vs.  Mason,  80  Me.  496 174 

Billings  vs.  Morrow,  7  Cal.  171 379 

Billings  vs.  Prinu,  3  Bl.  1017 54 

Bird  vs.  Brown,  4  Ex.  786 163,  225 

Bird  vs.  Daggett,  97  Mass.  494 377 

Bird  vs.  Randall,  3  Burr.  1345 602 

Birdsall  vs.  Russell,  39  N.  Y.  230 297 

Bixby  vs.  Parsons,  49  Conn.  483 291 

Black  vs.  Woodrow,  39  Md.  194 271 

Blachford  vs.  Preston.  8  T.  R.  89 20 

Blaokstone  vs.  Buttermore,  53  Penn. 

St.  266 254 

Blackwell  vs.  Ketcfeam,  63  Ind.  184....  419 

Bland  vs.  O'Hagen,  64  N.  C.  472 103 

Blevins  vs.  Pope,  7  Ala.  371 365 

Bliss  vs.  Clark,  16  Gray,  60 195,  280 

Bloomfleld  vs.  Bank,  121  U.  S.  135 140 

Blove  vs.  Sutton,  3  Mer.  23" 679 

Bloyes'  Trust,  Inre,  1  M.  &  G.  488 473 

Blunden  vs.  Desart,  2  D.  &  W.  433 639 

Bodine  vs.  Exchange  Ins.  Co.,  51 N.  Y. 

123 238 

Bodine  vs.  Killeen,  53  N.  Y.  93 35 

Bohart  vs.  Oberne,  36  K^tn.  284. 141 

Bollman  vs.  Loomis,  41  Conn.  581. ..25,  539 
Bolton  vs.  Hlllersden,  1  Ld.  Raym. 

224 156 

Bone  vs.  Eckless,  19  L.  J.  Ex.  438 498 

Bonney  vs.  Smith,  17  111.  531 254 

Booge  vs.  Pacific  R.  R.  Co.,  33  Mo.  213  534 

Booth  vs.  Jacobs,  3  N.  &  M.  351 716 

Botts  vs.  McCoy,  20  Ala.  578 38 

Bouck  vs.  Enos,  61  Wi.-.  6ii4 411 

Bou- field  vs.  Wilson,  16  M.  &  W.  185  408 

Bowles  vs.  Wathan,  54  ,\Jo.  364 8;} 

Bowling  vs.  Arthur,  34  Miss.  41 240 

Bowling   Green    Savings    Bank    vs. 

Todd,  52  N.  Y.  489 641,  643 

Bowne  vs.  Hyde,6  B^ib.  392 619 

Bozon   vs.  BolUnd,  4  M.  &  C.  3.54.. 639.  640 

Braden  vs.  Ward,  43  N.  J.  L.  518 636 

Bradford  vs.  Justices,  33  Ga.  333 61 

Bradstreet  vs.  Everson,  72  Penn.  St. 

123 243,  248 

Brady  vs.  Mayor,  16  How.  Pr.  433 JIG 

Brady  vs.  Todd,. 159 

Brahn  vti.  Jersey  City  Forge  Co.,  88  N. 

J.  L.  74 218 

Brantly  vs.  Insurance  Co.,  53  Ala  554 

380,  419 

Branwell  vs.  Penneck,  7B.  &  C.  530..     7 


PAQB 

Bray  VS.  Qnnn,  B3Qa.  148 691 

Breed  vs.  First  Nat.  Bank,  4  Colo.  481.  419 
Brewer  vs.  Broadwood,  22  Ch.  Dlv.  105  223 

Brewster  vs.  Carnes,  103N.Y.658 88 

Briggs  VB.  Georgia,  10  Vt.  68 620 

Brigham    vs.   Palmer,   8   Allen,   460 

152,175,407 

Brigham  vs.  Peters,  1  Gray,  147 Ill 

Brinckerhoof  vs.  Phelps,  24  Barb.  100.  651 
Brinsmead  VB.  Harrison,  L.  R.  7  0.  P. 

547 602 

British    Mutual    Banking     Co.    vs. 

Charnwood  Ry.,  18  Q.  R  D.  714 582 

Britton  vs.  Niccolls,  104  U.  S.  757 242 

Brock  vs.  Parker,  5  Ind.  630 30 

Bronson  vs.  Green,  Walk.  Ch.  68 151 

Brooke  vs.  Hook,  24  L.  T.  34 118 

Brooke  vs.  Railroad  Co.,  108  Penn.  629  583 

Brooks  vs.  Jameson,  55  Mo.  512 107 

Brooks  vs.  Martin,  2  Wall.  79 498 

Broomhead,  In  re,  5  D.  &  L.  52 639 

Brown,  In  re,  1  N.  Y.  Leg.  Obs.  69 639 

Brown  vs.  Feeter,  7  Wend.  305 651 

Brown  vs.  Hiatts,  15  Wall.  177 839 

Brown  vs.  McGran,  14  Pet.  479 702,  717 

Brown  vs.  Tarkington,  3  Wall.  371....    37 

Brownell  vs.  Bonney,  1  Q.  B.  39 716 

Browning  vs.  Ins.  Co.,  L.  R.  5  O.  P. 

263 439 

Browning  vs.  Magill.  2  H.  &  J.  308....  893 
Bruce,  Town  of  vs.  Dickey,  116  IlL  527 

119,  633 

Bryan  vs.  Reynolds.  5  Wis.  200 22 

Bryant  vs.  Moore,  26  Me.  84 140,  860 

Bryce  vs.  Brooks,  29  Wend.  374 717 

Buchanan  vs.  Curry,  19  Johns.  141 337 

Buck  vs.  Jones,  16  Tex.  461 193 

Buckland  vs.  Johnson,  15  C.  B.  145 ....  602 

Buford  vs.  Neeley,  2  Dev.  Eq.  481 313 

Bull  vs.  Sibbs,  8  T.  R.  337 71 

Buller  vs,  Harrison,  Cowp.  565 613 

Bunco  vs.  Gallagher,  5  Blatch.  481.335,  336 

Bundy  vs.  Monticello,  84  Ind.  119 626 

Burden  vs.  Burden,  1  V.  &  B.  170 523 

Burgan  vs.  Lyell,  2  Mich.  103 20 

Burlingame  vs.  Brewster,  79  lU.  516...  445 

Burnham  vs.  Holt,  14  N.  H.  367 80 

Burns  vs.  Lynde,  6  Allen,  305 103 

Burrows  vs.  Coke  &  Gas  Co.,  L.  R.  6 

Ex.67 611 

Burt  vs.  Lathop,  53  Mich.  106 47 

Burton  vs.  Holley,  29  Ala.  318 697 

Burton  vs.  Marshall,  4  Gill,  487 319 

Burton  vs.  Ry.  Co.,  9  Ex.  507 266,  275 

Bush  Exparte,  7  Vln.  Abr.  74 646 

Bush  vs.  Buckingham,  2  Vent,  83 158 

Butcher  vs.  Bank,  2  Kan.  70 617 

Butcher  vs.  Krauth,  14  Bush,  713 476 

Butler  vs.  Gable,  1  W.  &  S.  108 174 

Butler  vs.  Galletti,  21  How.  Pr.  465.318,320 
Butler  vs.  Hlldreth,  6  Mete.  49 176 


riv 


Cases  Cited. 


PAGE 

Botler  TB.  Price.  110  Mass.  97 40 

Butterfield  vs.  Beal,  3  Ind.  20J 433 

Bjington  ts.  Simpson,  134  Mass.  169  ..  455 

c. 

Cady  vs.  Shepherd,  11  Pick.  400 171 

Cage  vs.  Wilkinfon,  3  S.  &  M.  223 641 

Cainicross  vs.  Lorimer,  7  Jur.  149 187 

Calrnes  vs.  Blt-tker,  12  Jolina.  3lX)..210,  489 
Cairo,  etc.,  R.  R.  Co.  V8.  Mahoney,  83 

111.  73 127 

Calder  vs.  Dobell,  L.  R.  6  C.  P.  486 

439,  455,  560 

Caldicott  vs.  Griffiths,  8  Ex.  898 47 

Caldwell  vs.  Waters,  18  Penn.  79 33 

OalhouH  vs.  Millard,  121  N.  Y.  69 110 

Callander  vs.  Oelrichs,  5  Bing.  58 500 

Callo  vs.  Brouncker,  4  C.  &  P.  518 291 

Canapbell's  Appeal,  29  Penn.  401.. .620,  622 

Campbell  vs.  Philps,  1  Pick.  63 555 

Campbell  vs.  Portland  Sugar  Co.,  63 

Me.  562 517 

Campbell  vs.  Smith,  71  N.  Y.  28 103 

Cane  vs.  MHrtin,  2  Beav.  584 646 

Canty  vs.  Latterner,  31  Minn.  239 316 

Capron  vs.  Strou^  11  Nev.  304 276 

Card  ve  Hope,  2  B.  &  C.  661 20 

Carley  vs.  Jenkins,  46  Vt.  721 29 

Carmichael  vs.  Buck,  10  Rich.  333 355 

Carpenter  vs.  Farnsworth,  106  Mass. 

661 445 

Carpenter  vs.  Hf  Icomb,  105  Mas?.  284  5.61 

Carpenter  vs.  Marnell,  3  P.  &  P.  40 585 

Carter  vs.  Webster,  79  111.  435 667 

Carver's  Ca-se,  7  N.  &  E.  4'.9 616 

Carving  vs  Southland,  3  Hill,  553. 193 

Casco  Bank  vs.  Keene,  53  Me.  103 117 

Case  vs.  Bank,  100  U.  S.  446 68 

Case  vs.  Reeve.  14  Johns.  83 610 

Ca^sady  vs.  Seeley,  6!)  Iowa,  509. 311 

Cassidy  vs.  McKei  zie 333 

Castle  vs.  Belfast  Foundry  Co.,  72  Me. 

167 448,  460 

Castrique  vg.  Battlgieg,  10  E.  F.  MoC 

W. 714 

Cave  vs.  Cave,  15  Ch.  D.  639 570 

Cedar  Rapids  R.R.vs.Stewart,25Iowa, 

115 62 

Chamberlain  vs.  Dover,  13  Me.  474 195 

Chamberlain  vs.  MorEran.  68  Penn.  168  532 
Chamberlln  vs.McCalli8ter,6  Dana,353  530 

Chambers  vs.  Miller,  7  Watts,  C3 620 

Charles  VB.Eohleman,  5  Colo  107 29 

Charles  vs.  Hoboken,  3  Dutch.  203 66 

Chase  vs.  Piittberg,  13  Daly,  171  _ 450 

Chesterfield  Mfg.  Co.    vs.   Dehon.   6 

Pick. 7 696 

Chlrat'o,  B.  &  Q.  R.  R.  Co.  vs.  Riddle, 

80  111.  534 675 

Chicago  &  N.  W.  Ry.  Co.  vs.  Fillmore, 
67I1L265 676 


PAoa 
Child  vs.  Eureka  Powder  Works,  44 
N.  H.  354 620 

Chouteau  vs.  Goddin,  39  Mo.  229 124 

Church  vs.  Landers,  10  Wend.  79 76 

Churchward  vs.  Queen,  L.  R.  1  Q.  B. 

173 266,  271 

City  Bank  vs.  Barrow,  6  J^pp.  Cas.  664  394 

Claflin  vs.  Lenheim,  66  N.  Y.  301 365 

Clark  vs.  Kingsland,  1  S  &  M.  248....  620 

Clark  vs.  Little,  41  Iowa,  497 618 

Clark  vs.  Marsiglia,  1  Den.  317 255,  530 

Clark  vs.  Moody,  17  Mass.  145 704 

Clark  vs.  Smith,  88  111.  298 403 

Clark  vs.  Van  Riemsdyk,  9  Cr.  153.193,218 

Clark's  Case,  1  Blackf.  123 316 

Clark's  Lessee  vs.  Courtney,  5  Pet.  349  384 
Clealand  vs.  Walker,  11  Ala.  1058.. 364,  553 

Cleaves  vs.  Lord,  3  Gray,  66 71 

Clippinger  vs.  Hepbaugh,  W.  &  S.  315 

18,21,23 

Clossman  vs.  Lacoste,  28  Eng.  L.  &  K 

140 632 

Clough  vs.  Whilcomb,  105  Mass.  482..  408 

Cluie  vs.  Barron,  2  Mich.  192 460 

Cobb  vs.  Becke,  6  Ad.  &  El.  930 243 

C(ibb  vs.  Knapp,  71  N.  Y.  348 556 

Cock  vs.  Emmerling 668 

Cocke  vs.  Jennor,  Hob.  66. 602 

Codding  vs,  Mansfield,  7  Gray,  272 456 

Codwise  vs.  Hacker,  1  Caines,  628 355 

Coffin  vs.  Landis,  46  Penn.  426 266 

Coffin  vs.  Reynolds,  37  N.  Y.  640 6 

Colburn  vs.  Phillips,  13  Gray,  64 684 

Cole  vs.  Northwestern  Bank,  L.  R.  10 

C.  P.  354 393 

Coleman  vs.  Bank,  53  N.  Y.  393 439 

Coleman  vs.  Garrigues,  18  Barb.  60 651 

Coles  vs.  Kinder,  Cro.  Jac.  571 388 

Coles  vs.  Trecothick,  6  Ves.  Jr.  236 678 

Collins  vs.  Price,  4  Bing.  132 530 

Collins  vs.  Selden,  L.  R.  3  C.  P.  495....  530 

Colmer  vs.  Ede,  40  L.  J.  185 639 

Colonial  Bank  vs.  Cady,  15  App.  Cas. 

267_ 106 

Columbia  Bridge  Co.  vs.  Geisse,  38  N. 

J.  L.  39 107 

Combes'  Case,  9  Co.  766 326 

Combs  vs.  Scott,  12  Allen,  895 140,  182 

Corning  vs.  Culvert,  2  Hill,  56 304 

Coml.  Bank  vs.  Kortright,  22  Wend. 

848, 844 

Commercial  Bank  vs.  Norton,  1  Hill, 

501 238,  66/ 

Commercial  Bank  vs.  Union  Bank,  11 

N.  Y.  203 240,:241,  248 

Commercial  Bank  vs.  Warren,  15  N. 

i.677 114,  117 

Commercial  Fire  Ins.  Co.  vs.  Capital 

Ins.  Co.,  81  Ala.  330 636 

Commonwealth  vs.   Canal   Commis- 
sioners, 9  Watts.  466 66 


Cases  Cited. 


XT 


PAQB 

CommlBSlonerB  V8.  Lecky,  0  8.  &  R. 
166 66 

Commissioners  vs.  Perry,  5  Ohio,  66...  21 
Condit  vs.  Baldwin.  21  N.Y.  219.. ..142,  157 

Conger  vs.  Weaver,  30  N.  Y.  140 661 

Conkling  vs.  Krakauer,  70  Tt>x.  735 811 

Conn  vs.  Penn,  Pet.  C.  C.  496 837 

Cook  VB.  Berlin,  etc.,  Co., 43  Wis.  433..  479 

Cooley  vs.  O'Connor,  12  Wall.  391 67 

Coons  vs.  Renick,  11  Tex.  134 29 

Cooper  VB,  Clegb or n,  50  Wi.s,  113 450 

Cooper  vs.  Jenkins,  33  Reav.  431 636 

Cooper  vs.  Lampeter  Twp.,  8  Watte, 

125 66 

Coppln  vs.  Walker,  7  Taunt.  237 589 

Cormack  vs.  Digby,  I.  R.  9  C.  L.  657...  10 
Corn  Ex.  Ins.  Co.  vs.  Babcock,  42  N. 

Y.  614 85 

Corning  vs.  Southland,  3  Hill,  552....  218 

Cornwall  vs.  Wilson,  1  Ves.  Sr.  509 355 

Corser  vs.  Paul,  41  N.  H.  24 117 

Corson  vs.  Mulvaney,  49  Penn.  88 218 

Cort  vs.  Ambergate,  etc.,  R.  R.  Co., 

17  A.  &  E.  127 631 

Costlgan  V8  Mohawk  R.R.Co.,2DenIo, 

609 532 

Cothren  vs.  Connaughton,  24  Wis.  154 

614 

Coughtry  vs.  Globe  Woolen  Co.,56  N.Y. 

124 620 

Courcier  vs.  Ritter,  4  Wash.  649 210 

Coutourier  vs.  Hastie,  8  Ex.  39 711 

Cowaejee  Nanathoy  vs.  Lallbhoy  Vul- 

lubhoy,  3Ind.  A  p.  200 268 

Cowdrey  vs.  R.  R.  Co.,  93  U.  S.  854 647 

Cowell  vs.  Simpson,  16  Ves.  279 647 

Cowen  V8-  Boone,  48  Iowa,  350 _  636 

Cox  vs.  Bruce,  18  Q.  B.  D.  147 581 

Cox  vs.  Hoffman,  4  Dev.  &  Bat.  180 ...  410 

Cox  vs.  Livingston,  2  W.  &  S.  103 249 

Cox  vs.  Prentice,  3  M.  &  S.  345 512 

Cragie  vs.  Hadley,  99  N.  i.  131 563 

Crane  vs.  Baudr  nine,  56  N.  Y.  256 334 

Cravens  vs.  Gillilan,  63  Mo.  28 114 

Crawford  vs.  Baikley,  18  Ala.  270 193 

Crawford  vs.  Redu=,  54  Miss.  700 78 

Crawshaw  vs.  Roxbury,  7  Gray,  874...  455 

Cresson  vs.  Miller,  2  Watts,  272 623 

Crocker  vs.  Crane,  21  Wend.  211 57 

Crout  vs.  DeWolf,  1  H.  I.  393 117 

Crowe  vs.  Ballard,  3  Bro.  C.  0. 117 469 

Croy  vs.  Busenbark,  T^  Ind.  48 101 

Critchfleld  vs.  Porter,  3  Ohio  518 618 

Culver  vs.  Ashley,  19  Pick.  301 113 

CummintiS  vs.  McLaln,  2  Ark.  412- 496 

Curtis  va  Williamson,  L.  R.  10  Q.  B. 

67 656 

Cnshing  vs.  Longfellow,26  Me.  306 195 

Cutler  vs.  Thurlo,  20  Me.  213 191 

Cutter  vs.  Demmon,  111  Mass.  474 599 


D. 

PAQB 

Daly  vs.  Butchers'  &>  Droyers'  Bank, 
66  Mo.  94 239 

Daly  vs.  Smith,  49  How.  Pr.  150.. ..819,  820 

Damon  vs.  Granby,  2  Pick.  345 60,  64 

Dana  vs.  Kemble,  19  Pick.  113 528 

Danaher  vs.  Garlock,  33  Mich.  295 126 

Danby  vs.  Coutts,  29  Ch.  Div.  500 873 

Dangerfleld  vs.  Thomas,  9  A.  &  E.  292.  586 
Daniels  vs.  Ballantlne,  23  Ohio  St.  5.33.  697 
Danville  vs.  Railroad  Co.,  43  Vt.  144..  53 
Darling  vs.  Stan  wood,  14  Allen,  504 

JJ38,  260 

D'Arnay  vs.  Chesneau,  13  M.  &  W. 

798 686 

Darrow  vs.  St.  George,  8  Colo.  592 255 

Daugherty  vs.  Telegraph  Co.,  76  Ala. 

168 697 

Davenport  vs.  Sleight,  2  D.  &  Bat.  881  103 
Davenport,  etc..  Association  vs.  Insur- 
ance Co.,  16  Iowa,  74 145 

Davis  vs.  Ayers,  9  Ala.  292 537 

Davis  vs.  England,  141  Mass.  687 446 

Davis  vs.  Lane,  10  N.  H.  156 335,  336 

Davis  vs.  Preston,  6  Ala.  83 537 

Davis  vs.  School  District,  24  Me.  349..  195 
Davis  vs.  Windsor  Sav.  Bank,  46  Vt. 

778 333 

Davoue  va.  Fanning,  2  Johns.  Ch.  253 

470,  474 

Dawson  vs.  Lawly,  5  Es.  Ca.  65 384 

Day  vs.  Holmes,  103  Mass.  306 406 

Day  Land  &  Cat.Co.  vs.  Texas,  68  Tex. 

526 226 

Daylight  Burner  Co.  vs.  Odlln,  51  N. 

H.  56 406 

Dayton  vs.  Warne,  41 N.  J.  L.  659 435 

Dean  vs.  DeWolf,  16  Hun,  186,  83  N.  Y. 

626 6 

DeCaters  vs.  De  Chaumont,  3  Paige, 

178 474 

DeC^ordova  vs.  Knowles,  37  Tex.  19 379 

Degg  vs.  Midland  Ry,  1  H.  &  N.  773...  533 
Denning  vs.  Smith,  3  Johts.  Ch.  344 

364,  359 

Denny  vs.  Railroad  Co.,  13  Gray,  481..  693 
Deringer  vs.  Deringer,  5  Houst.  416...  42 
De  Rivaflnoli  vs.  Corsetti,  4  Paige, 

264 _316,  318 

Derry  vs.  Flitner,  118  Mass.  131 611 

Derwort  vs.  Loomer,  21  Conn.  245 620 

Desmond  vs.  Stebbins,  110  Mass  339...  3U 
Despatch  Line  vs.  Bellamy  Mfg.  Co., 

12N.  H.  305 93,  168 

Devallvs.  Burbridge,  4  W.  &  S.  305..  464 
Devinney  vs.  Reynolds.  1  W.  &  S.  338    70 

Devoss  vs.  Gray,  23  Ohio  .^t.  1G9 47 

DeWitt  vs.  Walton,  9  N.  Y.  570 439 

Dexter  vs.  Adams,  2  Den.  64G 208 

Dicas  vs.  Stockley,  7  C.  &  P.  587 647 

Dickerman  vs.  Ashton,2l  Mii  n.  538...  423 


XYl 


Cases  Cited. 


PAGB 

Dickinson  vs.  Conway,  13  Allen,  491...  140 
Dietriok  V8.  Baltimore  R.  R.,  58  Md. 

347_ ^''^ 

DlUaway  V8.  Butler,  135  Mass.  479 570 

Dillon  vs.  Anderson,  43  N.  Y.  231 532 

Distilled  Spirits,  The,  U  Wall.  356 563 

Dobbin  vs.  Dupree,  89  Ga.  394 618 

Dobson  vs.  Racey,  8  N.  Y.  216 474 

Dodd  vs.  Wakeman,  26  N.  J.  Eq.  484...  476 

Dodds  vs.  Dodds,  9  Penn.  395 620 

Dodge  vs.  Hopkins,  14  Wis.  630 381 

Dodge  vs.  Perkins,  9  Pick.  368 704 

Doe  vs.  Goldwin,  2  Q.  B.  143 218 

Doe  vs.  Roberts,  17  M.  &  W.  778 30.  31 

Doe  vs.  Walters,  10  B.  &  C.  625 218 

Dolan  vs.  Scanlan,  57  Cal.  261 667 

Donaldson  vs.  Farwell,  93  U.  S.  631....  893 

Doonan  vs.  Ives,  73  Ga.  295 667 

Dorchester   Bank   vs.  New  England 

Bank.  1  Cush.  177 239 

Dorrance  vs.  Scott,  3  Whart.  313 83 

Douville  vs.  Merrick,  25  Wis.  688 499 

Dowell  vs.  Williams,  33  Kan.  319 108 

Downin?  vs.  Rngar,  21  Wend.  178 57 

DnBoIs  vs.  Canal  Co.,  4  Wend.  285 ....  440 

Dudgeon  vs.  Haggart,  17  Mich.  275 151 

Duff  V8.  Russell,  14  N.  Y.  S.  134 322 

Dufresne  ve.   Hutchii  son,   3  Taunt. 

117 *88 

Dnguid  vs.  Edwards,  50  Barb.  290 697 

Duluth  Nat.  Bank  vs.  Insurance  Co., 

85  Tenn.76 238 

Duncan  vs.  Gilbert,  29  N.  J.  L.  521 ....  377 

Dunn  vs.  Sayles,  5  Q.  B.  6B5 266 

Durgin  vs.  Somers,  117  Mass.  55 29 

Durkee  vs.  Mott,  8  Barb.  423 530 

Dutton  vs.  Winner,  52  N.  Y.  312 476 

Drake  vs.  Trustees,  11  Iowa,  54 511 

Draper  vs.  Massachusetts  Steam  Heat 

Co.,  5  Allen.  338 448,450 

Drayton  vs.  Reid,  5  Daly,  Wi 291 

Dresser  vs.  Norwood,  17  C.  B.  446 562 

Drew  vs.  Nunn,  4  Q.  B.  Div.  661 336 

Driggs  vs.  Dwight,  17  Wend.  71 651 

Drinkwater  vs.  Goodwin,  Cowp.  251 ..  524 

Diury  vs.  Foster,  2  Wall.  24 122 

Dwight  vs.  Blackmar,  2  Mich.  330 400 

Dyer  vs.  Pearson,  3  B.  &  C.  42.. 859 

Dykers  vs.  Towneend,  24  N.  Y.  61.....  439 

E. 

Eadle  vb.  Ashbaugh,  44  Iowa,  519 146 

Earl  of  Sheffield's  Case,  13  App.  Gas. 

333 104 

Earp  vs.  Cummlnge,  54  Pewn.  St.  894..  255 

Easlcott  vs.  Mil  ward,  7  T.  R.  361 679 

Eaatln  R.  R.  Co.  ve.  Benedict,  5  Grjiy, 

566 439,559 

East   Haddam    Bank  va.   Scovil,   12 

Conn.  303 239 


PAQB 

East  India  Co.  vs.  Hensley,  1  Esp.  112 
354,  668 

East  River  Bank  vs.  Kennedy,  9  Bosw. 
543 61« 

Edens  vs.  Williams,  36  111.  252 313 

Edgar  vs.  Fowler,  3  East,  225 499 

Edgerly  vs.  Emerson,  23  N.  H.  555 64 

Edinboro  Academy  vs.  Robinson,  37 

Penn.  210 132 

Edmunds  VB.  Bushell,  L.  R.  1  Q.  B.  97.  370 

Edwards  vs.  Golding.  20  Vt.  31 588 

Edwards  vs.  Grand  Junction  Ry.  Co., 

1  M.  &  C.  650 136 

Eggleston  vs.  Boardman,  37  Mich.  14..  633 
Eggleston  vs.  Wagner,  46  Mich.  610...  101 

Eichbaum  vs.  Irons,  6  W.  &  S.  67 47 

Ekins  vs.  Maclish.  Ambl.  186 384 

Elderton  vs.  Emmens,  6  C.  B.  178 530 

Ellicott  vs.  Barnes,  31  Kan.  170 626 

Ellis  vs.  McNaughton,  76  Mich.  237 ...  517 

Ellis  vs.  Turner,  8  T.  R.  531 243 

Elwell  vs.  Chamberlain,  31  N.Y.611.156,158 

Elwell  vs.  Shaw,  16  Mass.  42 431 

Ely  vs.  Cooke,  28  N.  Y.  373 643 

Emery  vs.  Fowler,  39  Me.  226 655,  610 

Emery  vs.  Hapgood,  7  Gray,  55 599 

Emma  Silver  Min.  Co.  vs.  Grant,  11 

Ch.  D.  918 603 

Emmel  vs.  Hayes,  102  Mo.  193 85 

Emmons  vs.  Elderton,  4  H.  L.  Cas.  646  532 
Empres  Eng.  Co.,  In,  re,  16  Ch.  Div. 

128 130,135 

Enoch  vs.  Wehrkamp.  3  Bosw.  398  ...  718 
Ensworth  vs.  Life  Ins.  Co.,  7  Am.  L. 

Reg.  333 273 

Episcopal  Church  vs.  Varian,  28  Barb. 

644 851 

Episcopal     Society      vs.     Episcopal 

Church,  1  Pick.  372 218 

Erie,  etc.,  I'lankroad  Co.  vs.  Brown, 

25  Penn.  156 133 

Etheridge  vs.  Price,  73  Tex.  597 78 

Etherington  vs.  Parrott,  1  Salk.  118  ..  74 
European  Bank,  In  re,  L.  R.  6  Ch.  3.58.  570 
Evans  vs.  Wells,  23  Wend.  340  ..169,201,440 

Everett  v.^.  Saltus,  15  Wend.  474 3.59 

Everhart  vs.  Searle,  71  Ponn.25K 53» 

Exchange  Bank  vs.  Lewis  Co.,  28  W. 

Va.  273 445 

Exchange  Bank  vs.  Rice,  107  Mass.  37  659 
Eystra  vs.  Capelle,  61  Mo.  580 78 

F. 

Fabers  vs.  Mercantile  Bank,  23  Pick, 


330. 


239 

Fairbanks  v.s.  Snow,  146  Mass.  153 31 

Fairfield  vs.  Adiims,  16  Pick.  383 5?.t 

Falrlie  vs.  Fenton,  L.  R.  5  Ex.  769 506 

Fairmun  vs.  Bavin,  29  111.  75 464 

Fairthorne  vs.  Blaqulro,  6  M.  &  S.  73.    83 


Oases  Cited. 


XYU 


PAGE 

Falk  V8.  Moebs,  127  U.  S.  597- 460 

Farebrotlier  va.  Ausley,  1  Camp.  343..  a~'8 

Farmer  va,  Kusbell,  1  B.  &  P.  29tj 49a 

Farmer's  Co-operativo  Trust  Co.  va. 

Floyil,  47  Ohio  St.  525 605 

Farmers',  etc.,   Bank   vs.   Butchers' 

Bank,  16  N.  Y.  133 424 

Farmers',  etc.,  Bunk  vs.  Colby,  64  Cal. 

353 444 

Farmers',  etc.,  Bank  vs.  Kir  g,  67  Penn. 

St.  2i)2    626 

Farmers'  Loan  &  Trust  Co.  vs.  Wal- 
worth, 1  N.  Y.  446 156,  203 

Farnam  vs.  Brooks,  9  Pick.  212 479 

Farnsworth  vs.  Hemmer,  1  Allen,  494 

12,  539 

Farrington  vs.  Meek,  30  Mo.  581 524 

Farwf  11  vs.  Boston  &  W.  R.  R.,  4  Mete. 

49 518 

Fawcett  vs.  Cash,  5  B.  &  Ad.  908 282 

Fay  vs.  Noble,  12  Cush.  1 68 

Feild  vs.  Farrington,  10  Wall.  141 

691,  693,  702 

Fellows  vs.  Steamboat  Co.,  38  Conn. 

197 298 

Fenn  vs.  Harrison,  3  D.  «&  E.  760. .-354.  360 
Fereira  vs.  Sayres,  5  W.  &  S.  210... 328,  538 
Ferjiuson  vs.  Crawford,  70  N,  Y.  263...  618 

Ferris  vs.  Paris,  10  Johns.  285 704 

Fewings  vs.  Tisdal,  1  Ex.  295 530 

Field  vs.  Stagg,  53  Mo.  534 103,  123 

Fifth  Nat.  Bank  vs.  Hyde  Park,  101 

111.595 695 

Finch  vs.  Mansfield,  97  Mass.  89 408 

Firemans'   Ins.  Co.  vs.  McMillan,  29 

Ala.  147 193 

First  Nat.  Bank  vs.  Concord,  50  Vt.  281  52 
First  National  Bank  vs.  Gay,  63  Mo. 

33 114,  419 

First  Nat.  Bk.  vs.  Loyhed,  28  Minn. 

396 70 

Fischer  vs.  Bell,  91  lud.  243 311 

Fisher  vs.  School  District,  4  Cush.  494.  195 

Fisher's  Appeal,  34  Penn.  29 480 

Flsk  vs.  Ueuarie,  13  Oreg.  156 311 

Fitzhugh  vs.  Sackett,  36  N.  Y.  61 166 

Fitzpatrick    vs.   School    Commsr.,  7 

Humph.  224 118 

FitZiimmons   vs.    Southwestern  Ex. 

Co.,  40  Ga.  330 540 

Fleet  vs.  Murton.  L.  R.  7  Q.  B.  126 606 

Flemyng  vs.  Hector,  2  M.  &  W.  173.48,  47 
Floyd  Acceptances,  The,  7  Wall.  666..  433 

Fonda  vs.  VanHorn,  16  Wend.  631 31 

Ford  vs.  WUliam,  21  How.  289 439 

Fordyce  vs.  Pepper,  16  Fed.  Rep.  616..  692 

Foreman  vs.  Carter,  9  Kan.  674 617 

Forrer  vs.  Nash,  35  Beav.  167 223 

Forsyth  vs.  Day,  41  Me.  383 70 

Foray  the  vs.  Day,  46  Me.  176 113,  117 

B 


PAOB 

Forsythevs.  Bonta  SBnsh.  647....114,  117 

Fester  vs.  C  illoril,  44  Wit,,  hb'i 450 

Foulki  8  V8.  Metropolitan  Ry.,  4  C.  P. 

D.267 520 

Fowler  vs.  Armour,  24  Ala.  194... .634,  537 

Fowler  vs.  Shearer,  7  Mass.  13 431 

Fox  vs.  Mackrtth,  2  Bro.  C.  C  400  ....  469 

Foxeraft  vs.  Wood,  4  Huse.  487 330 

Fradley  vs.  Hyland,  37  Fed.  Rep.  49  ..  553 

Fianchot  vs.  Leach,  6  Cow.  506 631 

Franklin  vs.  Ezell,  1  Suted,  497 576 

P  ranklin  vs.  Insurance  Co.,  52  Mo.  461  107 
Fraukliu  vs.  Robinson,  1  Johns.  Ch. 

157 523 

Franklin  Fire  Ins.  Co.  vs.  Hart,  31  Md. 

69 135 

Frazier  vs.  Erie  City  Bank,  8  W.  &  S. 

18 591 

Fredenball  vs.  Taylor,  26  Wis.  286  ....  611 
Fredericks  vs  Mayer,  13  How.  Pr.  666 

318.330 

Freeman  vs.  Buckingham,  18  How.  182  581 
Freeman  vs.  Kosher,  66  E.  C.  L.  767...  159 

French  vs.  Price,  24  Pick.  13 656 

French  vs.  Wade,  35  Kan.  391 108 

Frenkelvs  Hudsou,  83  Ala.  158 366 

Fretz  va.  Stover,  23  Wall.  193 339 

Frink  vs.  Roe,  70  Cal.  2% 255 

Fritz  vs.  Finnerty,  10  C.  J.  L.  487 693 

Frost  vs.  Belmont,  6  Allen,  159 18 

Frost  vs.  Lawler,  34  Mich.  235 126 

Frostburg  M.  B.  Atsn.  vs.  Brace,  51 

Md.  5U8 44 

Frye  vs.  Saunders,  21  Kans.  26 2» 

Fullam  vs.  West  Brookfield,  9  Allen,  1  4.55 
Fuller  vs.  Uame,  18  Pick.  472 12, 10, 18 

G. 

Gage  vs.  Gage,  10  N.  H.  424 G2 

Gale  vs.  Kalamazoo,  23  Mich.  344. 234 

Gall  vs.  Comber,  7  Taunt.  558 710 

Gallup  vs.  Tracy,  25  Conn.  10 60 

Gandell  vs.  Poutiguy,  4  Camp.  375 530 

Garard  vs.  Basse,  1  DhU.  119 29 

Gardner  vs.  Buckbee,  3  Cowen,  120_..  530 
Gardner  vs.  McCutcheon,  4  Beav.  634.  290 

Garland,  Ex  parte,  4  Wall.  3o3 614 

Garland  vs.  Wells,  15  Neb.  298 103 

Garrard  vs.  Haddan,  67  Penn.  St.  82..  365 
Garrard  vs.  Pittsburgh,  etc.,  R.  R.Co., 

29  Penn.  164 474 

Garrett  vs.  Handley,4  B.  &  C  644..457,  689 

Geiger  vs.  Harris,  19  Mich.  209.  483 

General  Share  T.  Co.  v.  Chapman,  1 

C.  P.  Div.  771 644 

George  vs.  School  District,  6  Mete.  497  60 
George  vs.  Skivington,  L.  li.  6  Ex.  1...  620 
Gibson  vs.  Colt,  7  Johns.  490 .  ..354,  386,  389 

Gibson  vs.  Colt,  8  N.  Y.  398 e.-iO 

Gilbert  vs.  Holmes,  64  HI.  549 253,  316 


rvm 


Oases  Cited. 


FAGB 

Gilbert  ts.  James.  ?6  N.  O.  244^ 107 

Gilbert  V8.  Wel-ch.  75  Ind.  557 6:.7 

Gilbraith  vs.  Linebeiger,  69  N.  C.  145.  409 
Giliuan  vs.   Eastern  R.  R.,  10  Allen, 

253,13  Id.  433 618 

Gllman.  etc.,  R.  Co.  vs.  Kelly,  77  111. 

4i6_ : 464 

Gilmann  vs.  Henry,  53  Wis.  470 450 

Gilleiiwate™  vs.  Miller,  49  Miss.  150...  464 
Gillett  vs.  Newmarket  Savings  Bank 

7  111.  App.  4i« 450 

Gilliam  vs.  Bro^vn,  43  Miss.  641 498 

Giveus  vs.  Briscoe,  3  J.  J.  M.  529 619 

Glenn  vs.  Smith,  2  G.  &  J.  493 713 

Glcntworth  vs.  Luiher,  21  Barb.  147... 

303,  305 

Godfrey  vs.  Furz,  2  P.  Wm.  185 717 

God  in  vs.  London,  Assur.  Co.,  1  Burr, 

464 524 

Goflte  vs.  Gibson,  18  Mo.  App.  1 667 

Gold  Mining  Co.  vs.  National  Bank, 

96  U.  S.  644 188 

Gonsolis  vs.  Gearheart,  31  Mo.  585 292 

Goodall  vs.  Dolley,  1  T.  R.  713 245 

Godday  vs.  Railway  Co.,  17  Beav.  133.  135 

Goodenow  vs.  Tyler,  7  Mass.  36 676 

Goodman  vs.  Kennell,  3  C.  &  P.  167...  10 
Goodman  vs.  Pocock,  15  A.  &  E.  582.530,  532 
Goodtitle  vs.   Woodward,   3  B.   and 

Aid.  689 218 

Gordon  vs.  Brewster,  7  Wis.  355_ 634 

Gordon  vs.  Buchnnan,  5  Yerg.  71, 70 

Gordon  vs.  Jennings,  9  S.  B.  Div.  45...     6 

Gorman  vs.  Wheeler,  10  Gray,  362 677 

Goss  vs.  Steven?,  33  Minn.  473 311 

Gould  vs.  Lead  Co.,  9  Cush.  338 108 

Graham  vs.  Institution,  46  Mo.  186 417 

Grant  vs.  Norway,  10  C.  B.  665 68] 

Graves  vs.  Legg,  2  H.  &  N.  210 412 

Greely  vs.  Bartlett,  1  Me.  172 676 

Green  vs.  Early,  89  Md.  229 658 

Green  vs.  Lucas,  33  L.  T.  584 665 

Greon  vs.  Reed,  3  F.  &  F.  226 665 

Greenfleld  Bank  vs.  Crafts,  4  Allen, 

447 116 

Greenfield  Bank  vs.  Stowell,  123  Mass. 

198.. 104 

Greenlaw  vs.  King,  5  Jar.  19 464 

Greve  vs.  Coffin,  14  .Minn.  345 380 

Grit.b  vs.  Swann,  13  Johns.  381 611 

Griffin  vs.  Randall,  71  Ind.  440 78 

Griffiths  vs.  Griffiths,  2  Hare,  593 639 

Griffiths  vs.  Woliram,  22  Minn.  185...  522 

GriB.iBVS.Swlft,  82tia.  392 328 

Orindley  vrt.  B(irk.-r,  1  B.  &  P.  229  ....    55 

Grlnn.-ll  vs.  Cook,  3  Hill,  48ft 624 

Grlnnell  v8.  W,  U.  Tel.  Co.,  113  Mass. 

290 520 

Gri.HWold  vs.  Hnven,  25  N.  Y.  595 577 

Oroton  vs.  llurlburt,  22  Conn.  178 58 

Grove  tb.  Dubois,  1  T.  R.  112 708 


PAGB 

Grumley  vs.  Webb,  44  Mo.  448 464 

Guf  lich  vs.  National  State  Bank,  66 

Iowa,  434 239 

Guest  vs.  Opera  House  Co.,  74  Iowa, 

457 656 

Gulchard  vs.  Morgan,  4  Moo.  36 681 

Gulick  vs.  Grover,  33  N.  J.  L.  465 377 

Gunn  VB.  London  Ins.  Co.,  12  Com.  B. 

694 135 

Gunter  vs.  Astor,  4  J.  B.  Moore,  13 611 

Gurney  vs.  Behrend,  3  E.  &  B.623 581 

Gurney  vs.  Ry.  Co.,  58  N.  Y.  367 6 

Guthrie  vs.  Armstrong,  6  B.  &  Aid. 

628 58 

H. 

Hadden  vs.  Clark,  2  Grant,  107 620 

Hadwin  vs.  Fisk,  1  La.  Ann.  43 687 

Hagedorn  vs.  Oliverson,  2  M.  &  S.  485.  235 
Hahn  vs.  Concordia  Society,  43  Md. 

465 330 

Haight  vs.  Badgeley,  15  Barb.  499 316 

Haight  vs.  Holcomb,  7  Abb.  Pr.  210...  643 

Hale  vs.  Woods,  10  N.  H.  470 433 

Hall  vs.  Cockrell,  28  Ala.  507 456 

Hall  vs.  Harper,  17  111.83 80 

Hall  vs.  Hinks.  21  Md.  406 393 

Hall  vs.  Huse,  10  Mass.  39 114 

Hall  vs.  Laver,  1  Hare,  671 640 

Hall  vs.  Noyes,  3  Bro.  C.  C.  4^3 469 

Hall  vs.  Railroad  Co..  25  Vt.  401 134 

Hall  vs.  Wisconsin,  103  U.  S.  5 280 

Hamblin  vs.  Dinneford,  2  Edw.  Ch. 

529 316 

Hamilton  vs.  Lycoming  Mut.  Ins.  Co. 

5  Penn.  339 220 

Hamilton  vs.  McPherson,  28  N.  Y.  76..  533 
Hamilton  vs.  Vonght,  34  N.  J.  L.  187..  377 
Hamilton  vs.  Wright,  9  C.  &  F.  111...  484 
Hamilton  vs.  Schulte,  34  Minn.  634....  311 
Hammerslough  vs.  Cheatham,  84  Mo. 

13 128 

Hammond  vs.  Bank,  Walk.  Cb.  214...  203 
Hammond  vs.  Hanuin,  21  Mich.  aT-1-.-   1.0 

Hammonds  vs.  Barclay,3  East,  277 634 

Hampton  vs.  Speckenagle,  9  S.  &  R. 

212 603 

Handyalde  vs.  Cameron,  21  111.  588  ....  101 

Hanford  vs.  McNalr.  9  Wend.  54 92 

Hanks  vs.  Drake,  49  Barb.  203 210 

Hanson  vs.  Dexter,  36  Me.  516 60 

Hanson  vs.  Wolcott,  19  Kan.  207 617 

Hare  vs.  Mclntire,  82  Me.  240 523 

Hargreaves  vs.Rothwell,  1  Keen,  154..  662 

Harner  vs.  Dipple,  31  Ohio  St.  72 81 

Harper  vs.  Devene,  10  La.  Ann.  724 —  114 
Harper  vs.  Hampton,  1  H.  &  J.  709....  431 

Harper  vs.  Harvty,  4  W.  Va.  539 620 

Harrington  VB.  Dock  Co.,  3  Q.  B.  Div. 

649 18 


Oases  Cited. 


XIX 


PAGE 

HarriBbnrpr  Bank  vs.  ForBter,  8  Watte, 
16 497 

Harrold  vs.  Gillet^pie,  7  Huiriph.  57....  390 

Harrow  vs.  Farrow,  7  15.  Moii.  126 62(i 

Harshoy  vs.  BlackiTiarr,  20  Iowa,  161..  618 

Hart  vs.  Iloffmar.,  44  How.  Pr.  168 665 

Hartford  F.  Ins.  Co.  vs.  Wilcox,57  III. 

ISO 62,  373 

Hartley's  Apjieal,  53  Penn.  St.  212.. 253,  315 

Hai  top  vs.  Haare,  Stra.  1187 6S1 

Harvey  vs.  McAdams,  32  Mich.  472 29 

Harvey  vs.  Turner,  4  Rawle,  223 500 

Ha-telow  vs.  Jaokbon,  8  B.  &  C.  221....  498 
Hastings  vs.  Bangor  House  Proia'ie- 

tore,  18  Me.  436 140,  201 

Hastings  vs.  Lovering,  2  Pick.214 589 

Hatch  vs.  Coddingion,  95  U.  S  48 298 

Hatch  vs.  Taylor,  10  N.  H.  538.  359,  360,  526 
Hauptmann  vs.  Catlin,  20  N.  Y.  2l7....    32 

Haven  vs.  Lowell,  5  Mete.  35 64 

Hawker  vs.  B.  &  O.  R.  R.  Co.,  15  W. 

Va.628 575 

Hawkesworth  vs.  Thompson,  98  Mass. 

77 520 

Hawley  vs.  Cramer,  4  Cow.  717 474 

HawL-y  vs.  Keeler,  53  N.  Y.  114 69 

Hawley  vs.  Smith,  45  Ind.  183 313 

Hawiayne  vs.  Bourne,  7  M.  &  W.  596..    96 

Hayes  vs.  WilUo,  11  Abb.  Pr.  167 319 

Hay  ward  vs.  Pilgrim  Society,  21  Pick. 

270 64 

Hearsay  vs.  Pruyn,  7  John.  179 512 

Heald  vs.  Kenworthy,  10  Ex.  739 bbz 

Heath  vs.  Goslin,  80  Mo.  310.  47 

Heath  vs.  Paul,  81  Wis.  -532 100 

Heflfner  vs.  Browuell,  70  Iowa,  591 450 

Hefner  vs.  Vandolah,  63  111.  483  ...114,  116 

Hegenmyer  vs  Marks,  37  Minn.  6 601 

Hektograph  Co.vs.Fourl,  11  Fed.  Rep. 

844 641,  646 

Helyear  vs.  Hawke,  5  Esp.  72. 384 

Henderson  vs.  Mayhew,  2  Gill,  393 656 

Hern  vs.  Nichols,  1  Salk.  289. 203,  359 

Herring  vs.  Skagijs,  63  Ala.  180 413 

Heslop  vs.  Met(^alfe,  3  M.  &  O.  183....  6i6 

Hess  vs.  Kau,  9)  N.  Y.  a59 333 

Hetheringtoii  vs.  Kemp,  4  Camp.  193..  528 

Heyn  vs.  O'Hagen,  60  Mich.  150 180 

Hicks  vs.  Beaufort,  4  Bing.  229 715 

Hicks  vs.  Hankin,  4  E^-p.  114 351 

Hlesiand  vs.  Kuus,  8  Blackf.  345 81 

Hig^ins  vs.  Armstrong;,  9  Colo.  38 180 

Higgins  vs.  Moore,  34  N.  Y.  417 401 

Higgins  vs.  Senior,  8  M.  &  W.  834 

439.  559,  588 

Hightstowu  Bank  vs.  Chrietopher,  40 

N.J.  L.  435 571 

Hill  vs.  Day,  34  N.  J.  Eq.  150 »!6 

Hill  vs.  Frazier,  22  Penn.  3;.'0 464,  474 

Hill  vs.  Perrott,  3  Taunt.  ;i74 458 

Hinds  Ts.  Harbou,  68  Ind.  121 623 


PAon 

Hinds  VB.  Overacker,  66  Ind.  547 523 

Huag  vs.  Graves,  Hi  Mich. 628. 251 

Hot  by  vs.  Wisconsin  Bank,  17  Wis.  167    82 

Hodge  vs.  Combs,  1  Black,  193 375 

Ilodues  vs.  Thacher,  23  Vt.  455 61 

Hodgkinson  vs.Kelly,!  UoKan,3n8  610,  648 
Hndtcson  vs.  Dfxter,  1  ('ranch.  34«....  4*5 
Holcuuib  vs.  Weaver,  KJC  Ma.ss.  265...  25 
Holden     vs.    Fitchburg   R.     R.,   129 

Mass.  268 618 

Holden  vs.  New  York,  etc..  Bank,  72 

N.  Y.  286 _  563 

Holker  vs.  Parker,  7  Cranch.  436 620 

Holladay  vs.  Daily,  19  Wall.  606 381 

Hollingworth  vs..  Tooke,  2  H.  Bl.  501  .  718 
Hollins  vs.  Fowler,  L  R.  7  H.  L.  757..  228 

Holloway  vs,  Talb»t,  TO  Ala.  389 537 

Holly  vs.  Gosling,  3  E.  D.  Smith,  263..  304 

Holmes  vs.  Trumper,  22  Mich.  427 424 

Hoover  vs.  Wise,  91  U.  S.  208 241 

Hopkins  vs.  Gallaton  Turnp.  Co.,  4 

Humph.  412 43 

Horn  vs.  Baker,  2  Sm.  L.  Cas.  243 231 

Horner  vs.  Lawre..ce,  8  Vr.  46 519 

Horton  vs.  Champiiu,  13  R.  I.  550 637 

Horton  vs.  McMurtry,  5  H.  &  N.  667..  290 
Hough  vs.  Edwards,  1  H.  &  N.  171  ....  639 
Houghton  vs.  First  Nat.  Bank,  26  Wis. 

663 451 

Houghton  vs.  Matthews,  3  B.  &  P.  489  709 

Hovey  vs.  Ten  Brotck,  3  Rob.  316 7 

Howard  vs.  Baillie,  3  H.  Bl.  618 384 

Howe  vs.  Lawrence,  3  Zab.  99 619 

Howe  vs.  Thayer,  17  Pick.  91 297 

Howe  Machine  Co.  vs.  Simler,  69  Ind. 

307 298 

Hoyt  vs.  Thompson,  19  N.  Y.  207 180 

Hubbard  vs.  Elmer,  7  Wend.  446 375 

Hubbard  vs.  Marshall,  50  Wis  322....  460 

Hubbert  vs.  Burden,  6  Whart.  91 439 

Hughes   vs.  McDonough,    14  Vroom, 

459 612 

Hull  vs.  Jones,  69  Mo.  587 107 

Hull  vs.  Pickersgill,  1  B.  &  B.  283 128 

Hunt  vs.  DeBlaquire,  5  Bing.  550 74 

Hunt  vs.  Rousmanier,  8  Wheat   174 

254,  2.57,  279.  315,  330,  333 

Hunter  vs.  Giddings,  97  Mass.  41 659 

Hunter's  Adm.  vs.  Miller,  5  B,  Men. 

613 438 

Huntington  vs.  Claflin,  10  Bosw.  262...  292 
Huntington    vs.    Knox,   7   Cush.   371 

439,  441,  559 

Huntington  vs.  Ogdenburgh  R.  R.,  33 

How.  Pr.  416 633 

Hurlbut  vs.  Marshall,  62  Wis.  690 27 

Hussey  vs.  Thornton,  4  Mass.  405 191 

Huston  vs.  Mitchell,  14  S.  &  R.  307  620,632 

Hutchinson  vs.  Howard,  15  Yt.  644 649 

Hutton  vs.  Eyre,  6  Taunt.  289 603 

Hyatt  vs.  Clark,  118  N.  Y.  666 148 


zz 


Oases  Cited. 


PAGB 
Hyde  vs.  Planters'  Bank,  17  La.  Ann. 

560 240 

Hydea  vs.  Jones,  4  Bush.  464 234 

I 

Illinois  vs.  Delafleld  8- Paige,  527 195 

Illinois  vs.  Delafield,  26  Wend.  193....  195 

Ingalls  vs.  Lord.  1  Cow.  240 639 

Ingallsvs.  Morgan,  10  N.  Y.  178 180 

Ingereon  vs.  Stariiweather,  Walk.  Ch. 

346 460 

Insurance  Co.  vs.  Iron  Co.,  21  Wis. 

458 Ul 

Insurance  Co.  vs.  McCain,  96  U.  S.  84.    68 

Ireland  vs.  Todd,  36  Me.  149 620 

Iron  Age  Pub.  Co.  vs.  Western  Union 

Tel.  Co..  83  Ala.  498 316 

Iron  Mt.  Ry.  vs.  Knigit,  123  U.  S.  79..  581 
Irwin  vs.  Workman,  3  Watts.  357 257 

J. 

Jackson  vs.  Badger,  35  Minn.  52 70 

Jackson  vs.  Bank  of  U.  S..  10  Penn.  61 

593,  626 

Jackson  vs.  Union  Bank,  6  H.  &  J.  146  239 
Jackson  vs.  Van  Dalfsen,  5  Johns.  43..  474 

Jacobs  vs.  Kolf,  2  Hilt.  Ill 3U4 

Jaffray  VB.  King,  34  Md.  217 290 

James Ej;  parfe,  8  Ves.  337 475 

Janvrin  vs.  Exeter,  48  N.  H.  83 455 

Jaqnes  vs.  Todd,  3  Wend.  83 364,  414 

Jaques  vs.  Weeks.  7  Watts,  261 632 

Jefferson  County  vs.  Slagle,  66  Penn. 

202 58 

Jeffrey  vs.  Aiken,  4  Ses.  Gas.  729 472 

Jeffrey  vb.  Bigelow,  13  Wend.  518.354.  384 
Jeffries  vs.  Insurance  Co.,  110  U.  S. 

805 - 70,  280 

Jefts  vs.  York,  10  Gush.  393 503 

Jefts  vs.  York,  4  Cubh.  371 456 

Jenkins  vs.  Hutchinson,  13  Q.  B.  744..  608 

Jenkins  VB.  Walter,  8  G.  &  J.  218 628 

Jenney  vs.  Delesdernier,  20  Me.  183..-.  620 

Jennings  vs.  McConnel,  17  HI.  150 497 

Jeter  vs.  Haviiand,  24  Ga.  253 620 

Jewett  vs.  Alton,  7  N.  H.  253 56 

Jewett  vs.  Miller,  10  N.  Y.  402 474 

Joel  vs.  Morrison,  6  C.  &  P.  501 10 

Johnson  vs.  Credit  Lyonnals,  3  0.  P. 

Dlv.  224 393 

Johnson  vs.  Cunningham,  1  Ala.  249..  238 

Johnson  vs.  Dodd,  56  N.  Y.  76 58 

Johnson  vs.  Filkington,  39  Wis.  62 401 

Johnston  vs.  Wright.  6  Cal.  373 381 

Jon'  B  vs.  Andover,  9  I'ick.  145 57 

Jones  VB  Gllrnore,  91  Penn.  310 698 

Jones  VS.  Glass,  13  Ired.  305 .  410 

Jones  vs.  Littk'dal".  6  Ad.  &  El.  486...  457 

Jones  vs.  Ransom,  3  Ind.  327 620 

Jordan  vs.  James,  5  Ohio,  99 717,  719 

Jordan  vs.  Stewart,  23  Penn.  8t.  247...  372 


PAQI 

Joslin  vs.  Oowee,  58  N.  Y.  626 640 

Junkins  vs.  School  District,  39  Me.  520   64 

K. 

Kinney  vs.  Tabor,  62  Mich.  517 619 

King  vs.  Brown,  2  Hill,  488. 653 

Kirkham  vs.  Marter,  2  B.  &  Aid.  613..  431 

King  vs.  Steiren,  44  Penn.  99 533 

King  vs.  McLean,  15  N.  H.  9 ... 555 

King  vs.  Forrest,  3  T.  R.  38 61 

Kingsbury    vs.     School    District,    12 

Mete.  99 56 

King  vs.  Beeston,  3  T,  R.  693 64 

Kitchen  vs.  Shaw,  6  A.  &  E.  729 7 

Kincaid  vs.  Dwinelle,  59  N.  Y.  548 7 

Kingsbury  vs.  Smith,  13  N.  H.  110 361 

King  vs.  Lnngnor,  1  N.  &  M.  576 101 

King  vs.  Berdbrooke,  4  T.  R.  245 282 

Kansas  &  P.  Ry.  Co.  vs.  Pointer,  9 

Kan.  620 575 

Kansas  Pac.  Ry.  vs.  Streeter,  8  Kan. 

133 617 

Kasson  vs.  Noltner,  43  Wis.  637 400 

Katzenstein  vs.  Railroad,  84  N.  O.  688.  409 

Kean  vs.  Davis,  21  N.  J.  L.  683 447 

Keeler  vs.  Salisbnry,  33  N.  Y.  653 158 

Keech  vs.  Sanfor«J,  1  Eq.  Cas.  53.. ..464,  469 

Keidan  vs.  Winegar,  —  Mich.  — 451 

Keller  vs.  Singleton,  69  Ga.  703 8.56 

Keller  vs.  Tracy,  11  Iowa,  530 611 

Kelley  vs.  Neburyport  R.  R.  Co.,  141 

Mass.  496 178,181 

Kelley  vs.  Scott,  2  S.  &  M.  81 620 

Kellogg  vs.  Curtis,  65  Me.  61 105 

Kellogg  vs.  Gilbert,  10  Johns.  220 619 

Kelly  vs.  Calhoun,  95  U.  S.  711 44 

Kelly  vs.  Dutch  Church,  2  Hill,  116...  651 

Kelly  vs.  Solari.  9  M.  &  W.  64 2:11 

Kelner  vs.  Baxter,  L.  R.2  C.  P.  185.130,  136 

Kemble  vs.  Kean,  6  Sim.  333 318 

Kennebec  Co.   vs.   Insurance  Co.,  6 

Gray,  204 70 

Kennedy  vs.  Green,  8  M.  &  K.  699 570 

Kennett  vs.  Chambers,  14  How.  38  ....  87 
Kenny  vs.  Hazeltlne,  6  Humph.  63....  390 
Kent  vs.  Dawson  Bank,  13  Blalchf. 

237 240,  248 

Kenton    Ins.   Co.   vs.   McClellan,  43 

Mich.  564 36 

Kent  vs.  Ricards,  3  Md.  Ch.  393 620 

Ketchnm  vs.  Evertson,  13  Johns.  865..  886 
Keyser  vs.  Chicago,  etc.,  Ry.  Co.,  66 

Mich.  390 678 

Knapp,  In  re,  85  N.  Y.  284 637,  644,  646 

Kna])p  vs.  Alvord,  10  Paige,  3'i5 332 

Knapp  vs.  Smith,  27  N.  Y.  277 36 

Knatchbull  vi.  Hallet.  13  Oh.  D.  696...  597 

Knox  vs.  Fiack,  22  Ponn.  337 81 

Kock  vs.  Emmerling,  22  How.  72 804 

Koruemann  vs.  Mouaghttu,24  Mich.  36  403 
Kruger  vs.  Wilcox,  Amb.  252.. 330,  524,  717 


Cases  Cited. 


XXI 


PAQB 

ETipper  vs.  Sonth  Parleh,  12  Mass.  185.   64 


Lacy  VB.  Obaldlston,  8  C.  &  P.  80 290 

La  Farge  vs.  ICneeland,  7  Cow.  456 512 

Laflels  vs.  Catterton,  1  Mod.  67 888 

Laflferty  v.  Jelley,  22  Ind.  471 470 

Lafond  vs.  Deans,  81  N.  Y.  514_ 47 

Laing  vs.  Butler,  87  Hun,  144 553 

Lalande  vs.  Aldrich,  6  S.  Rep.  28 276 

Lambert  vs.  Sanford,  2  Blackf.  137....  620 
Lancaster  vs.  Knickerbocker  Ice  Co., 

153  Penn.  St.  427 441 

Lancaster  vs.  Walsh,  4  M.  &  W.  16 455 

Land  vs.  Church,  4  Madd.  207 640 

Lane  vs.  Albright,  49  Ind.  275 665 

Lane  vs.  Bryant,  9  Gray,  245 575 

Langley  vs.  Sturtevant,  7  Pick.  214 704 

Larkin  vs.  Hapgood,  56  Vt.  597 513 

Latham  vs.Honston  Mill8,68  Tex.  127.  450 

Laugher  vs.  Pointer,  5  B.  &  C.  647 559 

Lavassar  vs.  Washburne,  50  Wis.  200.    78 

Lawrence  vs.  Jarvis,  32  111.  304 618 

Lawrence  vs.  McArter,  10  Ohio,  37 81 

Lairrence    vs.    Stonington   Bank,  6 

Conn.  521 239 

Lawrence  vs.  Taylor,  6  Hill.  107 

93.  169.  217,372,428,  440 

Lawson  vs.  Pettison,  7  Eng.  401 620 

Layng  vs.  Stewart.  1  W.  &  S.  222 503 

Lazarus  vs.  Bryson,  3  Bin.  54 460 

Lee  vs.  Fontaine,  10  Ala.  755 193 

Lee  vs.  Soames,  36  W.  R.  884 223 

Lefevre  vs.  Lloyd,  5  Taunt.  749 457 

LeNeve  vs.  LeNeve,  1  Amb.  436 568 

Lenox  ts.  Cook,  8  Mass.  460 246 

Lerned  vs.  Johns,  9  Allen,  419.... 659 

LeRoy  vs.  Beard,  8  How.  451 386 

Lester  vs.  Webb.  1  Allen,  34 68 

Leuthold  vs  Fairchild,  35  Minn.  111...  617 

Lenthold  vs.  Young,  33  Minn.  122 316 

Leverick  vs.  Meigs,  1  Cow.  645 712 

Levi  vs.  Booth,  4  Ex.  588 621 

Levy  vs.  Lord  Herbert,  7  Taunt.  314  ..  531 
Lewis  vs.  Hillman,  3  H.  L.  Cas.  607  ...  473 

Lewis  vs.  Lee,  3  B.  &  C.  291 33 

Lewis  vs.  Mason,  94  Mo.  551 659 

Lewis  vs.  Nicholson,  18  Q.  B.  503 608 

Lewis  vs.  Peck,  10  Ala.  143 242 

Lewis  vs.  Read,  13  M.  &  W.  834 124 

Lewis  VB.  Sumner,  13  Mete.  269 620 

Lewis  vs.  Woodruff,  16  How.  Pr.  539..  620 
LIckbarrow  vs.  Mason,  6  East,  23.. 524,  581 

Lleb.=cher  vs.  Kraus,  74  Wis.  387 448 

Lightbody  vs.  N.  A.  Ins.  Co.,  23  Wend. 

22 860 

Lime  Rock   Bank    vs.   Plimpton,   17 

Pick.  159 205 

Llmpus  vs.  London  Gen.  Omnibus  Co., 

IH.  AC.  626 583 

Lincoln  vs.  McClatchie,  38  Conn.  186..  667 


PAOa 

Lincoln  Savings  Bank  vb.  Ewlng,  12 
Lea,  602 42 

Llnnehan  vs.  RoUin-.  137  Maps.  123...      9 

Lister  vs.  AIl.>n,31  Md.  543  344,894 

Lister  vs.  Stubba,  45  Ch.  I).  1 603 

Llvin<:s  vs.  Wiler  33  IIL  387 117 

Lloyd  vs.  Loafing,  6  Ves.  773 4.') 

Lluyd  vs.  Matthews,  51  N.  Y.  132...304,  6fi6 

Lobdellvs  Baker,  1  .Mete.  202 360 

Lockhart  vs.  Barnhart,  14  M.  &  W.  674  455 

Lockhart  vs.  Wyatt,  10  Ala.  231 620 

Lock  wood  vs.  Thome,  11  N.  Y.  173 691 

Lodge  vs,  Simoiiton,  3  P.  &  W.  439....  622 
Lomax  vs.  Cartwrit;lit,  3  Wash.  161...  385 

Long  vs.  Hartwell,  34  N.  J.  L.  116 428 

Long  vs.  Hebb.  ytyles  341 128 

Lord  V.  Womleighton,  1  Jac.  .580 639 

Loring  v.  Brodie,  1.34  Mass.  453 670 

Louck  vs.  Woods,  15  111.  256 68 

Louisville  Coffin  Co.  vs.  Stokes,  78  Ala. 

372. 40,  363 

Love  vs.  Miller.  i3  Ind.  294 665 

Lovelock  vs.  Frar.klyn,  8  Ad.  &  E.  371  629 
Low  vs.  Railroad  Co  .  45  N.  H.  375.133,  626 

Low  v.  Railroad  Co.,  46  N.  H.  284 134 

Luby  vs.  Railroad,  17  N.  Y.31 575 

Lucas  vs.  Pe.icock,  9  Beav.  177 640 

Lumley  vs.  Wagner,  1  De  G.,  M.  &  O. 

604 318,  320 

Lundie  vs.  Robertson,  7  East,  231 715 

LyeU  vs.  Kennedy.  10  Q.  B.  Div.  798 ...  225 

Lyman  vs.  Bridkje  Co.,  2  Aik.  255 27 

Lynch  vs.  Fallon,  11  R.  I.  311 640,  692 

Lynn  vs.  Burgoyne,  13  B.  Mon.  400 238 

Lyon  vs.  Jerome,  26  Wend.  485 2,'^4 

Lyon  vs.  Mitchell,  36  N.  Y.  235... 17, 18,  304 

M. 

Maanss  vs.  Henderson.  1  East,  337 681 

Macdonnell  vs  Harding,  7  Sim.  178...  628 

Mackenzie  vs.  Scott,  6  Bro.  280 709 

Mackersy    vs.  Ramsays,  9  C.  &  F. 

818 241 

Mackreth  vs.  Fox,  4  Brown  P.  C.  268..  469 

Maclean  vs.  Dunn.  4  Bing.  722 220 

Maclure  Expaite,  L.  R.  5  Ch.  737 266 

Magee  vs.  Atkinson,  2  M.  &  W.  440.457,  688 

Maguire  vs.  Seldon,  103  N.  Y.  642 678 

Maguire  vs.  Smock,  43  Ind.  1 20 

Mahoney  vs.  McLean,  26  Minn.  415 441 

Malnprlce  vs.  Westley,  6  B.  &  S.  420..  660 
Maitland  vs.  Martin,  86  Penn.  St.  120.  643 
Mamlock  vs.  FafrbRnks.  46  Wis.  415..  403 

Manby  vs.  Scott,  1  Mod.  125 74 

Manhattan  B.  &  M.  Co.  vs.  Thomp- 
son, 58  N.  Y.  80 _    88 

Manhattan  L.  Ins.  Co,  vs.  Warrick,  20 

Gratt.  614 339 

Mansfield  vs.  Mansfield,  6  Conn.  6.59..  264 
Marquand  vs.  Mfg.  Co.,  17  Johns.  625.  .313 
Marr  vs.  Given,  23  Me.  65 379 


XXll 


Cases  Cited. 


PAGH 

MarselUps  Extension  Ry.  In  re,  L.  R. 

7Ch.  161 570 

Marsh  vs.  Pier,  4  Rawle.  273 176 

Marshall  vs.  Meech,  51  N.  Y.  HO... 637.  643 

Marshall  vs.  Xagle,  1  Bail.  308 619 

Marshall  vs.  Railroad  Co.,  16  How.  314 

18,22 

Marshall  vs.  Rutton,  8  T.  R.  515 33 

Martin  vs.  Almond,  25  Mo.  133 432 

Martin  vs.  Rector,  101  N.  Y.  77 40 

Martin  vs.  Lemon,  26  Conn.  193 59 

Martini  vs.  Coles,  1  M.  &  S.  140 681 

Mason  vs.  Whitthorne,  2  Cold.  242....  626 

Ma^sie  vs.  Wat's,  4  Cranch.  148 467 

Mastereon  vs.  LeClaire,  14  Minn.  163..  620 

Mastin  vs.  Gray,  19  Kan.  458 617 

Mathias  vs.  Sellers,  86  Penn.  St.  486...  52t 
Matthews  vs.  Alexandria,  60  Mo.  115..  234 
Matthews  vs.  Menedger,  2  McL.  145...  717 

Maxwell  vs.  Owen,  7  Cold.  630 620 

May  vs.  W.  U.  Tel.  Co.,  112  Mass.  90  ..  520 
Mayenborg  vs.  Haynes,  50  N.  Y.  675...  578 

McAfee  vs.  Crofford,  14  How.  447 611 

McAllister    vs.    Commonwealth,    30 

Penn.  536 626 

McAllister  vs.  Hoffman,  16  S.  &  R. 

147 498 

McBratney  vs.  Chandler,  23  Kan  692.    18 

McCabe  vs.  Fogg,  60  How.  Pr.  488 645 

McCaiitsvs.  Wells,  4  S.  C.  361 251 

McCaull  vs.  Braham.  16  Fed.  Rep.  37.  320 
McClelland  vs.  Whitely,  15  Fed,  Rep. 

822 140 

McComas  vs.  Long,  t'5  Irid.549 626 

McCombie  v?.  Davies,  6  Ei8t,538 681 

McConu  vs.  Lady,  10  W.  N.  493 503 

McCormiclc  vs.  Joseph,  83  Ala.  401 366 

McCormick  vs.  Malln,  5  Blackf.  509...  479 
McCracken  vs.  San  Francisco,  16  Cal. 

624 162 

McCrea  vs.  Purmort,  16  Wend.  469....  440 
McCullough  Iron   Co.  vs.  Carpenter, 

67Md.554 276 

McCullough  vs.  Moss,  5  Den.  567 423 

McCullouiih  vs.  Thompson,  45  N.  Y. 

Super.  449 653 

McDonald  vs.  Egt'leston,  26  Vt.  154....  171 

McDonald  vs.  Potter,  8  Barr,  189 497 

McDowell  vs.  Simpson,  3  Watts,  129  ..  222 
McFarland  vs.  Wheeler,  26  Wend.  467.  635 
McGavock  vs.  Woodlief,  20  How.  221  .  3U4 
McGregor  vs.  Gardner,  14  Iowa,  326...  254 
McHuKh    vs.    Schuylkill   County,   67 

Penn.  391 118 

Mclntyre  vs.  Carvo.r,  2  W.  &  S.  392  ...  624 

McKeo  vs.  Kent,  24  Miss.  131 40 

McKee  vs.  U.  S.,  8  Wall.  163 37 

McKeiizle  vs.  Linen  Co.,  6  App.Cas.82  117 

McKenzie  v.  Nevius,  22  Me.  138 524 

McKlnster  vs.  Bank  of  Utica,  9  Wend. 

4ft_ 243 


PAOB 

McLaren  vs.  Hall,  86  Iowa,  297 86 

McLain  vs.  Wallace,  103  Ind.  562 626 

McLendon  vs.  Wilson,  6"^  Ga.  48 691 

McMillan  vs.  Arthur,  98  N.  Y.  167 600 

McMorrls  vs.  Simpson,  21  Wend.  610..  489 

McMurtry  vs.  Brown,  6  Neb.  368 101 

McPherson  vs.  Cox,  96  U.  S.  404 64T 

McVey  vs.  Cantrell,  70  N.  Y.  293 35 

Mead  vs.  Spalding,  94  Mo.  43 78 

Meason  vs.  Kaine,  63  Penn.  335 220 

Meehan  vs.  Forre.stor,  52  N.  Y.  277  .180,195 
Mechanics'  Bank  vs.  Bank  of  Colum- 
bia, 5  Wheat.  326 385,  444, 589 

Mechanics'  Bank  vs.  Railroad  Co.,  13 

N.  Y.  633 M 

Meguire  vs.  Cor  wine,  101  U.  S.  108... 22,  25 
Meister  vs.  Biruey,  24  Mich.  405....  187, 188 
Melhadc  vs.  Railway  Co.,  L.  R.  9  C. 

P.  505 130. 136 

Mercer  vs.  Graves,  L.  R.  7  Q.  B.  499...  646 
Merchants'  Bank  vs.  State  Bank,  15 

WalL  604 424 

Merchants'  Nat.  Bank  vs.  Goodman, 

109  Penn.  433 240 

Merket  vs.  Smith,  33  Kan.  66 626 

Merrick's  Estate,  5  W.  &  S.  17 5.">5 

Merrifleld  vs.  Parrett,  11  Oush.  591.111, 171 
Merrill  vs.  Kenyon,  48  Conn.  314. ..550,  556 
Merrill  vs.  Norfolk  Bank,  19  Pick.  82.  598 
Metropolitan  Exhib.  Co.  vs.  Ward,  3 

N.  Y.  S.  779 323 

Meyer  vs.  Hanchett,  43  Wis.  246 540 

Meyer  vs.  Hehner,  96  111.  4tiO 2'J8 

Michigan  C.  R.  R.  Co.  vs.  Colemau,  28 

Mich.  440 575 

Michond  vs.  Girod,  4  How.  503 474 

Mickelberry  vs.  Harvey,  58  Itid.  523...    40 

Millar  vs.  Roach,  150  Mass.  140 448 

Millay  vs.  Whitney,  63  Me.  522 373 

Miller  vs.  Edmonston.  8  Flackf.  291...  620 

Miller  vs.  Larson,  19  Wis.  463.... 499 

Miller  vs.  Louisville  R.  R.  Co.,  83  Ala. 

274 601 

Miller  vs.  Newell,  20  S.  C.  123 647 

Miller  vs.  Schneider,  19  La.  Ann.  300.  687 

Miller  vs.  Watt,  70  Ga.  385 40 

Mills  vs.  Hunt,  20  Wend.  431 6.=il 

Mills  vs.  Hunt,  17  Wend.  333 706 

Millsvs.  Mills.  40  N.  Y.  54:? 23 

Mills  vs.  O'Hara,  1  S.  &  R.  32 714 

Mining  Co.  vs.  Anglo  Cal.  Bank,  104 

U.  S  193 68 

MItchum  vs.  Dunlap,  98  .Mo.  418 108 

Mobile,  etc.,  R.  Co.  vs.  Ashcraft,  48 

Ala.  15 575 

Monroe  vs.  Hamilton,  60  Ala.  226 313 

Montague  vs.  Flocton,  L.  R.  16  Eq.  189  319 

Monte  Allegre,  The,  9  Wheat.  618 384 

Montgomery  County  Bank  vs.  Albany 

City  Hank,  3Seld.  459 240,  241 

Montgomery  vs.  Dorion,  6  N.  H.  »50...    92 


Cases  Cited. 


zxui 


PAGE 

Montleth  vs.  Printing  Co.,  16  Mo. 
App.  450 659 

Moody  V8.  Leverich,  4  Daly,  401.... 530,  533 

Moouey  V3.  Elder,  56  N.  Y.  288 665 

Moore  vs.  Hill,  38  Fi-d.  Rep.  330 227 

Moore  vs.  Lockett,  3  Bibb.  67 191 

Moore  vs.  Mandlebauni,  8  Mich.  433...  479 

Moore  vs.  Moore,  5  N.  Y.  256 474 

Moore  Hardware  Co.  vs.Towers  Hard- 
ware 10.,  87  Ala.  206 135 

Morgan  v.s.  Teuer,  83  Penn.  305 248 

Morgan  vs.  Vale  of  Neath  Ry.,  5  B.  & 

fe.670 618 

Morris  vs.  Cleasby,  4  M.  &  S.  566 709 

Morris  vs.  Wallace,  3  Penn.  319 626 

Morrison  vs.  Davis,  10  Peun.  171 698 

Morrison  vs.  Thompson,  L.  R.  9  Q.  B. 

480. 639 

MortimtT  vs.  Cornwell,  Hofl.  Ch.  351 .  6.J0 
MofcCfa  V.4.  Bierling,  31  N.  Y.  46:^.303,  3Uo,  6(35 
Moss  VS.  Rot'sie  L.  Min.  Co.,  6  Hill,  137  218 

Mott  vs.  Hicks,  1  Cow.  536 608 

Mound  City  Ins.  Co.  vs.  Hath,  49  Ala. 

630 127 

Mouutford  vs.  Scott,  1  T.&  R.  274 561 

Mowattvs.  McLelan,  1  Wei.d.  173 512 

Mowrey  vs.  Walsh,  8  Cow.  238 393 

Mulchey    vs.   Metbodist  Society,    135 

Was?.  487 .'520 

MuUer  vs.  Pondir,  55  N.  Y.  325 624 

Mui^dinev.  Puts,  14  Ala  84 366 

Mundorf  vs.  Wickersham,  63  Penn.  87  153 
Mann  vs.  Commission  Co.,  15  Johns.  44 

341,  354,  360 

Mnnro  vs.  Allaire,  2  Caino'sCas.  183..  473 

Murray  vs.  Binninger,  o6  N.  Y.  61 156 

Murray  vs.  East  India  Co.,  5  B.  &  Aid. 

204 423 

Mussey  vs.  Scott,  7  Cush.  216 431 

Myers  vs.  Gilbert,  18  Ala.  467 355 

MyerB  vs.  Mutual  L.  Ins.  Co.,  99  N.  Y. 

1„ 180 

Mynn  vs.  Jollflfe,  1  M.  &  R.  326 401 

N. 

Nason  vs.  Blalsdell,  15  Vt.  171 611 

National  Bank  vs.  Matthews,  98  U.  S. 

621 454 

National  Bank  vs.  Insurance  Co.,  104 

U.  S.  54 695 

National  Bank  of  Commerce  vs. '  hi- 

cago,  B.  &  Q.  Ry.  Co.,  44  Minn.  224..  683 
National  Ins.  Co.  v.  Allen,  116  Mass. 

3'JS 659 

National  Security  Bank  vs.  Cushman, 

121  .Mass.  49J 570 

Navigation  Co.  vs.  Dandridjje,  8  G.  & 

J.  248 140 

Nt  al  vs.  Patten,  40  Ga.  863 107 

Ntilson  vs.  Lee,  60  Cal.  555 311 

Nelson  vs.  Albrldge,  3  Stark,  435 656 


PA  OB 

N'elson  vs.  Cowing,  6  Hill.  836 H>^ 

Nelsou  vs.  Plimpton  Co.,  55  X.  Y.  480.   631 

Nesbitt,  .Bxjia/fc,  3S.  A  L.  279 639 

New  Hamiisbire  Iron  Factory  v.  Rich- 
ardson, 5  N.  H.  ~94 275 

New  York  Iron  Mine  vs.  Netaunee 

Bank,  39  Mich.  644 418 

New  Yurk  L.  Ins.  Co.  vs.  Statham,  93 

U.  S.  24 339 

New  York  L.  &  T.  Co.  vs.  Staats,  21 

Barb.  570 68 

New  York,  etc.,  R.  Co.  vs.  Ketchnm, 

27  Conn.  170 134 

New  York,  etc.,  R.  R.  Co.  vs.  Schuy- 
ler, 84  N.  Y.  30 94,425,  677 

Newell  vs.  Borden,  128  Mass.  31 47 

Newell  vs.  Hurlburt,  2  Vt.  351 173 

Newell  vs.  Keeth,  11  Vt.  214 61 

Newell  vs.  Smith,  49  Vt.  255 238 

Newman  vs.  Insurance  Co.,  17  Minn. 

123 70 

Newman  vs.  Reagan,  65  Ga.  512 291 

Newson  vs.  Thornton,  6  East,  17 681 

Newton  vs  Bron?on,  3  Kern,  594 217 

Nlchol  vs.  Martyn.  2  Esp.  733  2W) 

Nind  vs.  Marshall,  1  B.  &  B.  319 383 

Nixon  vs.  Hamilton,  2  D.  &  W.  364. .562.  568 
Nixon  vs.  Hyserott,  5  Johns.  (N.  Y.)58 

381,  388 

Nixon  vs.  Palmer,  8  N.  Y.  398..159,  200.  650 

Noel  vs.  Drake,  28  Kan.  265 25 

Norrisvs  Hero,  22  La.  .^nn.  605 626 

North  Carolina  R.  R.  Co.  vs.  Swepson, 

71N.  C.  350 63 

North  River  Blink  vs.  Aymar,  3  Hill, 

263 38.  877 

Norton  vs.  Fazan.  1  B.  &  P.  227 _    74 

Norton  vs.  Sewell,  106  Mass.  143 530 

Norwood  vs.  Harness  98  Ind.  134 625 

Nowell  vs.  Wright,  3  Allen,  Hitt 619 

o. 

Obert  vs.  Hammell.  3  Har.  74 400 

Odiiieal  vs.  Barry.  24  Miss.  9 21 

Odiorne  vs.  Maxcy,  13  Mass.  178 844 

Oil  Co.  vs.  Van  Etten,  l'i7  U.  S.  334  ...  691 
Olcott  vs.  Tioga  B.  Co.,  27  N.  Y.  548....    84 

Oliver  vs.  Holt,  11  Ala  574 638 

O'Neal  vs.  Brown,  21  Ala.  483 688 

Ontario  Bank  vs.  Mumf-rd,  2  Barb. 

Ch.  598 686 

Ormerod  vs.  Dearrnan.  100  Penn.  661..    23 

Orr  vs.  Ward,  73  ill.  313 260,  27\  291 

Os -anyan  vs.  Arms  Co.,  103  U.  S.  2«1.    22 
Osgood  vs.  Nelson,  L.  R.  6  H.  L.  636...  2:J4 

Owen  vs.  Foulkes,  6  Ves.  630 475 

Owen  vs.  Frink,  24  ( 'iiL  178 255 

Owen  vs.  White,  5  Port.  435 80 

Owings  va.  Hull,  9  Pet.  608.  .38, 140,  159,  200 
Owsley  vs.  Philips,  78  Ky.  617 _  118 


XXIT 


Oabes  Cited. 


P. 

PAGH 
Pacfeet  Co  vs.  Clongh,  20  Wall.  540...  574 

Page  vs.  Cashing,  38  Me.  527 609 

Paine  vs.  Tucker,  21  Me.  138 93 

Palmer,  In  re,  1  Abb.Pr.  43 60 

Palmer  vs.  Ashley.  3  Ark.  75 496 

Palmer  vb.  Cheney,  35  Iowa,  381 126 

Palmer  vs.  Jarmain.  3  M.  &  W.  283....  489 

Palmer  vs.  William?,  24  Mich.  338 168 

Palllser  vs.  Ord,  Buub.  168 679 

Palmerton  vs.  Huxford,4  Den.  166.156,  201 

Panama  Co.  vs.  India  Rubber  Co 608 

Paschal,  In  re 644 

Parker  vs.  Brancker,  23  Pick.  40 703 

Parker  vs.  Hill,  8  Mete.  447 103 

Pari^er  vs.  McKenna,  L.  R.  10  Ch.  96..  603 
Paruham  vs.  Hurst,  8  M.  &  W.  743....  586 

Parry  vs.  Smith,  4  C.  f.  I  iv.  825 620 

Parsons  vs.  \^inchell,  5  Cush,  593 519 

Partridge  vs.  Forsyth,  29  Ala.  200 636 

Paschal,  In  re,  10  Wall.  483 639,  644 

Paterson  vs.  Gandasequi,  15  East,  62.. 

467,648,  588 

Paterson  vs.  Tash,  Str.  1178 (\81 

Patrick  vs.  Hazen,  10  Vt.  184 643 

Patten  vs.  Rea,  3  C.  B.  608 10 

Patterson  vs.  Leavitt,  4  Conn.  60 66 

Pattison  vs.  Wallace,  1  Stew.  48 697 

Paul  vs.  Hummeil,  43  Mo.  123 80 

Paxton  Cattle  Co.  vs.  First  Nat.Bank, 

21  Neb.  621 135 

Payne  vs.  Cave,  3.  T.  R.  148 659 

Pearce  vs.  Foster,  7  Q.  B.  Div.  536 291 

Peck  vs.  Ritchjy,  68  Mo.114 106 

Peck  vs.  Waters,  104  Mass.  345 71 

Peele  vs.  Nonhcote,  7  Taunt.  478 710 

Peeters  vs.  Opie,  3  Wm.  Sauud.  850....  531 

Pierce  vs.  Kuley,  5  Ind.  69 21 

Pell  vs.  Ulmar,  21  Barb.  ,500 68 

Pemberton,  Ex  parte,  18  Ves.  282 639 

Pendexter  vs.  Vernon,  9  Humph.  61...  630 
Peninsular    Bank    vs.    Hanmer,    14 

Mich.  208 175 

Penn  vs.  Evans,  28  La.  Ann.  676 128 

Penn  Match  Co.  vs.  Hapgood,  14  Mass, 

145 135 

Pennell  vs.  Deffell,  4  DeG.  M.  &  G.  672 

692,  62(5 

Pennsylvania  Xav.  Co.  vs.  Dandrldi^re, 

8  O.  &  J.  323 200,  201 

Pennsylvania    R.    R.    vs.  Books,   67 

Peuij  339 575 

Pennywit  vs.  Foote,  27  Ohio  St.  600...  618 
Pentz  vs.  Stanton,  10  Wend.  271.... 439,  444 

people  vs.  CoKhill.  47  Cal.  861 .    58 

Peijple  vs.  Comptroller,  20  Wend.  596.    61 

People  vs.  Hayeti,  7  How.  Pr.  218 61 

People  vs.  Laiihorn,  1  Scam  123 630 

People  vs.  Nichols.  63  N.  Y.  478 59 

People  vs.  Vc-rnoii,  35  Cul.  49 576 

PeopU  vg.  Walker,  23  Barb.  304 58 


PAGB 

Perles  vs.  Ayclena,  3  W.  &  S.  7S 373 

Perkins  vs.  Boothby,  71  Me.  91 426 

Perkins  vs.  Bradley,  1  Hare,  219 640 

Perkins  vs.  Hart,  11  Wheat.  256 691 

Perkins  vs.  State,  50  Ala.  154 694 

Perkins  vs.  Thompson,  3  N.  H.  144  ....  460 

Perry  vs.  Holl,  2  DeG.  F.  &  J.  38 374 

Peters  vs.  Farnsworth,  15.  Vt.  155 387 

Peters  vs.  McKeon,  4  Denio,  546 651 

Philadelphia,    etc.,    R.   R.   Co.     vs. 

Cowell,  28  Penn.  337. 373 

Philadelphia,  etc.,  R.  R  Co.  vs.  Derby 

14  How.  468 8 

Phillips  vs.  Foxall,  L.  R.  7  Q.  B.  666...  291 
Phillipps  vs.  Stagg,  2  E.iw.  Ch.  108...  641 

Philpot  vs.  Bingham,  55  Ala.  435 81 

Phosphate  of  Lime  Co.  vs.  Green,  7  C. 

P.  43 178,  183 

Physioc  vs.  Shea,  75  Ga.  466 291 

Pjckard  vs.  Perley,  45  N.  H.  188 218 

Picken  vs.  Graham,  1  C.  &  M.  728 716 

Pickering  vs.  Busk,  15  East,  38 

40,359,384,393 

Pickett  VS.  Pearson,  17  Vt.  470 210 

Pickle  vs.  Muse,  88  Tenn.  380 417 

Pi«-ce  V8.  Strickland.  2  Story.  -93 631 

Piercy  vs.  Hendrlck,  2  W.  Va.  458 108 

Pittsburgh  Mining  Co.  vs.  Spooner,  74 

Wis.  307 _  135 

Poillon  vs.  Martin,  1  Sandf.  Ch.  669...  475 

Polk  vs.  Daly,  4  Daly.  411 533 

Pollard  vs.  Gibbs,  55  Ga.  45 168,  170 

Pollard  vs.  Vinton,  105  U.S.  7 581 

Pope  vs.  Armstrong,  3  S.  &  M.  214 641 

Pope  vs.  Meadow  Co.,  20  Fed.  Rep.  35.  6.56 
Portage  vs.  Cole,  1  Wm.  Saund.  819...  271 
Porter  vs.  Woodrufif,  36  N.  J.  Eq.  174..  479 

Pott  vs.  Turner,  6  Bing.  702 303 

Potttr  vs.  Hunt,  68  Mich.  243 649 

Potvin  vs.  Curran,  13  Neb.  302 311 

Poulter  vs.  Cornwall.  1  Salk.  9 704 

Powel  vs.  Bradlee,  y  G.  &  J.  378 667 

Powell  vs.  McHenry,  -7  Ala.  612 33 

Powell  vs.  State,  27  Ala.  61 38 

Powell  vs.  Tuttle,  3  Comst.  896 68 

Power  vs.  First  Nat.  Bank,  6  Mont. 

251„ 240 

Powers  ve.  Brlggs,  79  111.  493„ 444,  446 

Powers  vs.  Skinner,  84  Vt.  281 18 

Pownall  VB.  Blair,  78  Penn.  403. 250 

Pratt  vs.  Montegriflo,  10  N.  Y.  S.  903..  322 

Precious,  vs.  Abel,  1  Esp.  360 156 

Preston  vs.  Hull.  23  Gratt.  600 103 

Preston  vs.  Liverpool,  eta,  R.  R.  Co., 

1  Sim.  586 133 

Preatwick  vs.  Marshall,  7  Blng.  666 39 

Preston  vs.  Railway  Co.,  L.  R.  7  Eq. 

1^4 136 

Price  vs.  Seydel,  46  Iowa,  699 78 

Price  VB.  Ward,  1  Dutch,  225 618 

Prickett  vs.  Badger,  1  C.  B.  296 665 


Gases  Cited. 


XiV 


PAOR 

Prince  vs.  Clark,  1  B.  <fc  0. 185 184 

Pritchard  vb.  Comer,  71  Ga.  18 7U0 

Protection  L.  lua.  Co.  vs.  Foote,  79  111, 

881 27 

Providence  vs.  Miller,  11  R.  1. 272 450 

Pugsley  vs.  Murray,  4  E.  D.  Hmith,  246  540 
Purintoa  vs.  insurance  Co.,  72  Me.  23.    70 

Putnam  vs.  French,  63  Vt.  403 4u3.  411 

Putnam  vs.  Sullivan,  4  Mass.  46 104 

Q. 

Quarles  vs.  Poner,  12  Mo.  78 830 

R. 

Ragran  vs.  Chenault,  78  Ky.  648 168 

Railroad  Co.  vs.  Burrows,  33  Mich.  6 .  698 
Railway  Co.  vs.  Derby,  14  How.  468....  8 
Railroad  Co.  vs.  Ilanning,  15  Wall. 649  8,  9 
Railroid  Co.  vs.  Lockhart.  79  Ala.  315.  697 
Railroad  Co.  vs.  McGuire,  79  Ala.  395.  698 
Bailroad  Ca  vs.  Reeves,  10  Wall.  176..  698 
Railway  Co.  vs.  Railway  Co.,  76  Wis. 

234 18 

Raisin  vs.  Clark,  41  Md.  158 540,  692 

Rakes  vs.  Pope.  7  Ala.  161 636 

Ramey  vs.  Holcombe.  21  Ala.  667 537 

Ramsden  vs.  Ambrose,  1  Stra.  127 71 

lianck  vs.  Albright,  36  Penn.  367 275 

Randall  vs.  Krlilor,  60  Me.  37 406 

Randall  vs.  Van  Vechten,  19  Johns.  60  169 

Rankin  vs.  West,  25  Mich.  195 78 

Ranney  vs.  Donovan,  78  Mich.  318 13 

Ransom  vs.  Miner,  3  Sandf.  692 639 

Rajjson  vs.  Cnbitt,  9  M.  &  \V,  710 6'JO 

Rathbun  vs.  Ingalis,  7  Wend.  320 704 

Rathbun  vs.  teteamboat  Co.,  78  N.  Y. 

376 214 

Ray  vs.  Powers,  134  Mass.  22 47 

Raymond   vs.  Crown,   etc..   Mills,  2 

Met.  319 656 

Raymond  vs.  Squire,  11  Johns.  47 SHO 

Rayner  vs.  Mitchell,  3  C.  P.  Dlv.  357..    10 

Read  vs.  Dunsmore,  9  C.  &  P.  583 290 

Read  vs.  Dupper,  6  T.  R  361 640 

Redfield  vs.  Tegg,  38  N.  Y.  212 665 

Redlon  vs.  Churchill,  73  Me.  146 104 

Reese  vs.  Medlock,  27  Tex  120 107,  376 

Reeves  vs.  State  Bank,  8  Ohio  8t.  405 

2-10,  241.  248 

Reglna  vs.  Bailey,  D  &B.  121 2,4 

Reglna    vs.  Callaghan,  Gow.   N.   P. 

Ca^.  168 4 

Regiiia  vs.  Cleworth,  4  B.  &  S.  037 7 

Regina  vs.  Goodburj',  8  C.  &  P.  605....  2 
Regiua  vs.  Turner,  11  Cox  C.  C.  561....  9 
Regina  vs.  Wortley,2Den.  C.  C.a5.—  8,4 
Reichwald  vs.  Commercial  Uotel,  106 

111.  4.39 135 

Rendell  vs.  Harrlman,  75  Me.  4»7 446 

Benwick  vs.  Foster,  50  Iowa,  527 238 

Rez  V8.  Carr,  R.  &  R,  198 2,8 


PACK 

Rex  vs.  Ward,  8  O.  A  P.  164 4 

Reyman  vs.  Mosher,  71  Ind.  506 666 

Reynolds  vs.  Feiree,  f6  111.  576 141 

Rbines  vs.  Evann,  66  I'eun.  192 240 

Rhodes  vs.  Forwood,  1  App.  Cas.  256.. 

288,  275 

Rice  vs.  Barnard,  127  Maes.  241 298 

Rice  vs.  Groffinan,  56  Mo.  434 86 

Ri(  e  vs.  Peninsular  Club,  52  Mich.  87.  47 
Rice  vs.  Tavernier,  8  Minn.  248.. ..379,  880 

Rice  vs.  Wilkins,  21  Me.  558 620 

Hice  vs.  Wood,  113  Mass.  133.. .639,  599,  693 

Rice  vs.  Yocum,  —  Penn  St.  — 237 

Ricketts  vs.  Bennett,  4  M.  Q.  &  S.  686 

46 

Riddle  vs.  Murphy,  7  S.  &  R.  235 497 

Ridgeway  vs.  Market  Co.,  3  Ad.  &  E. 

171 290 

Richl  vs.  Evansville  Foundry  Assn., 

104  Ind.  70 595 

Right  vs.  Outtrell,  5  East,  491 218 

Rimell  vs.  Sampayo,  1  C.  &  P.  254 I.=i6 

Ringo  vs.  Binns,  10  Pet.  269 476 

Roach  vs.  Turk,  9  Heisk.  708 228 

Roberts  vs.  Burks,  Litt.  Sel.  Cas.  411..  675 

Robinson  vs.  Ames,  20  Johns.  146 248 

Robinson  vs.  Kanawha  Valley  Bank, 

44  Ohio  St.  441 445 

Robinson  vs.  Life  Assur.,  42  N.  Y.  54_.  339 

Roberts  vs.  Rumltiy,  58  Iowa.  301 141 

Robinson  vs.  Rutter,  4  E.  &  B.  954 663 

Robinson  vs.  Ward,  3  C.  &  P.  60 626 

Rockwell  vs.  Elkhorn  Bank,  13  Wis. 

053 451 

Roe  vs.  Pierce,  2  Camp.  96 218 

Rogers,  Ex  parte,  7  Cow.  526 57 

Rogers  vs.  Kneeland,  10  Wend.  219....  383 

Rogers  vs.  Nichols,  20  Tex.  719 313 

Rogers  Mfg.  Co.  vs.  Rogers,  58  Conn. 

350 316 

Rolling  Mill  vs.  Railway  Co,  6  Fed. 

Rep.  853 140 

Rolling  Stock  Co.  vs.  Railroad  Co.,  34 

Ohio  St.  450 610 

Rollins  vs.  Phelpe,  6  Minn.  463 69 

Rome  vs.  Stevens,  35  N.  Y.  Super.  189.  540 
Rooney  vs.  Second  Ave.  R.  Co.,  18  N. 

Y.  373 643 

Rosenstock  vs.  Tormey,  32  Md.  169....  668 

Rossvs.  Noel,  Bull.  N.P    i;«3  71 

Rosbiter  vs.  Rost-iter,  8  Wend.  494 

96,341,  374,  360,  428 

Rotch  vs.  Miles,  2  Conn.  638 74 

Rountree  vs.  Denson,  69  Wis.  632 S7J 

Rowe  vs.  Stevenx,  53  N.  Y.  6.'1.... 6»i5 

Kowo  vs.  Ware,  30  Ga.  278 170 

Howell  vs.  Klein,  44  lad.  2^0 38 

Rowland  vs.  S?tate,  5s  Penn.  196 620 

Roxburghe  vs.  Cox,  17  Ch.  D.  620 662 

Koyster  vs.  M'Agcveny,  9  Lea,  148 667 

Roze  nberger's  Appeal,  26  Penn.  67 —  474 


ZZYl 


C/ABES   tllTED. 


PA  OB 

Rnffner  vs.  Hewitt,  7  W.  Va.  («5 644 

Runquist  vs.  Di.chell,  3  Esp.  65 854 

Rupp  VB.  Sampson,  16  Gray,  398 

13,639,  665 

Russell  V8.  Langstaff.-,  2-Dong.  614 105 

Rust  VB.  Larue,  4  Lltt.  411 316 

Ryman  vs.  Qerlach,  163  Peno.  197 238 


s. 


Sadler  vs.  Leigh,  4  Camp.  195 689 

Safety  Life  D.  Ins.  Co.  vs.  Smith,  65 

111.  309 136 

Sage  vs.  Sherman,  Lalor's  Sup.  147 ...  169 
Salisbury    Mills    vs.   Townsend,   109 

Mass.  115 139 

Saltus  vs.  Everett,  20  Wend.  263 228 

Sanderson  vs.  Caldwell,  2  Ark.  195 610 

Sandford   va.  Handy,  23  Wend.  26i) 

359,  381.385 

Sanrtlman  vs.  Breach.  7  B.  &  C.  96....      7 

Sands  vs.  Arthur,  84  Penn.  479 220 

Sands  vs.  Life  Ins.  Co.,  50  N.  Y.  626...  839 

Sanger  vs.  Dun,  47  Wis.  615 249 

Sauquerico  vs.  Bendetti,  1  Bart).  315 

316,318 

Sarjeant  vs.  Blunt,  16  Johns.  74 488 

Sargent  vs.  Webster,  13  Mete.  497 64 

Satterthwaite  vs.  Vreeland,  8  Hun, 

162 306 

Saveland  vs.  Green,  40  Wis.  168 189 

Savings    Bank    vs.  Railroad  Co.,  20 

Kans.  519 683 

Savings  Institution  vs.  Chinn,  7  Bush, 

639 --    619 

Sayre  vs.  Nichols,  7  Cal.  635 238,  4-44 

Scanlan  vs.  Keith,  103  lU.  634 450 

Scharlcck  vs.  Oland,  1  Rich.  L.  20  ....  647 

Schenck  vs.  Peay,  1  Woolw.  176 58 

Schlmmelpennick  vs.  Bayard,  1   Pet. 

264 349,359,414 

Schintz  vs.  McMaiiamy,33  Wis.  299...  103 
School  District  vs.  First  Nat.  Bank, 

102  Mass.  174 628 

Schultz  vs.  Griffin,  121  N.  Y.  294 886 

Schwartz  vs.  Schwartz,  21  Hun, 32 (U2 

Scott  vs  Detroit  Society,  1  Doug.  119  .    56 

Scott  vs.  Kenton,  81  111.  96 611 

Scott  vs.  Middletown,  etc.,  R.  R.  Co., 

86  N.  Y.  200 180 

Scott  vs.  Rogers,  31  N.  f .  676 48a 

Scribiier  vs.  Collar,  40  Mich.  375 693 

Seaiio  vs.  Martin,  6  Holsk.  308 193 

Sedgwick  vs.  Staunton,  14  N.  Y.  289  ...    18 

Seiple  vs.  Irwin,  30  Penn.  513 872 

Seneca  County   Bank   vs.   Neass,   6 

Donlo,  339 571 

Sequin  vs.  PeterKon,  45  Vt.  225 80,  226 

Sevier  vs.  Hollid.iy,  i  Ark.  612 498 

Sewaiiee   Mining  Co.    vs.    McCall,  8 
Head.  619 426 


PAQH 

Seymour  VB.  Wyctoff,  10  N.  Y.  213 

159,200,288 

Shackmanvs  Little.  87  Ind.  187 376 

Shanks  vs.  Lancaster,  5  Gratt.  110 432 

shaver  vs.  IhlIi  .m,  58  Mich.  619 291 

Shaw  vs.  Railroad  Co.,  101  U.  S.  657...  681 

Shelton  vs.  Tiffin,  47  U.  S.  163 618 

Shepard  vs.  Palmer,  6  Conn.  100 173 

Shepherd  vs.  Hedden,  29  N.  J.  L.  334..  667 
Sherman  vs.  New  \  ork  Cent.  K.  R. 

Co.  23N.  Y.  239 _  651 

Sherwood  vs.  Hauser,  94  N.  Y.  628 334 

Sherwood  vs.  Stone,  14  N.  Y.  267 711 

Shisler  vs.  Vandike,  93  Penn,  447 118 

Shores  vs.  Caswell.  13  Met.  413 619 

Short  vs.  Stone,  8  Ad.  &  E.  358 629 

Siegel  vs.  Gould,  7  Lans.  177 539 

Simonds  vs.  Heard,  23  Pick.  120 455 

Simonton  vs.  Barrell,  21  Wend.  362....  619 

Sims  vs.  Bond,  5  B.  &  Ad.  389 693 

Sims  vs.  Smith,  99  Ind.  469 40 

Simpson  vs.  Carson,  11  Greg.  361 255 

Simpson  vs.  Lamb,  17  C.  B.  603 254 

Simp?on  vs.  Waklby,  63  .Mich.  439 240 

Sines   vs.  Superintendents.  58   Mich. 

103 276 

Singer  vs.  McCormick,  4  W.  &  S.  265..  290 

Singleton  vs.  Mann,  3  Mo.  464 40 

Sioux  City  K.  R.  vs.  First  National 

Bank,  10  Neb.  656 683 

Slade  vs.  VanVechten,  11  Paige,  26....  474 
Smedes  vs.  Bank  of  Utica,  30  Johns. 

373 243 

Smith  vs.  Binder,  75  111.  493 _  613 

Smith  vs.  Craig,  3  \V.  &  S.  20 267 

Smith  vs.  Denuio,  6  Pick.  363 191 

Smith  vs.  Hay  ward,  7  A.  &  E.  544 630 

Smith  vs.  Hodson,  4  T.  R.  211 166,  173 

Smith  vs.  Kidd,  68  N.  Y.  130 88,  141 

Smith  vs.  Lindo,  5  C  B.  587 544 

Smith  vs.  People,  47  N.  Y.  337 .      7 

Smith  vs.  Plummer,  5  Whart.  89 175 

Smith  vs.  Smith,  45  Vt.  433 698 

Smith  vs.  Sorby,  3  Q.  B.  Div.  553....  18,  608 

Smith  vs.  Sublett,  28  Tex.  168 233 

Smith  vs.  Thompson,  8  C.  B.  444 533 

Smith  vs.  Townsend,  109  Mass.  600 639 

Smith  vs.  Tracy,  86  N.  Y.  79 

141,  142,200,203,  413 

Smith  vs.  Tramel,  68  Iowa,  488 117 

Smock  vs.  Dade,  5  Rand.  639 620 

Snedicor  vs.  .Mobly,  47  Ala.  507 237 

Snow  vs.  Perry,  9  Pick.  642 849,  359 

Solly  vs.  Forbes,  4  Moore,  448 384 

Solly  vs.  Kathbone,  2  .M.  &  S.  299 680 

South,  etc.,  R.  R.  Co.  vs.  Henleln,  53 

AlH.  606 107,  536 

Southcote  vs.  Stanley,  1  H.  &  N.  247..  621 
Sowerby  vs.  Butcher,  2  O.  &  M.  871...  457 
Spencer  vs.  Hlackmau,  9  Wend.  167...  487 
Spencer  vs.  Field,  10  Wend.  88 488 


Oases  Cited. 


xxvn 


PAOB 

Spencer  vs.  Harding:,  L.  R.  6  O.  P.  661.  6G0 

Spencer  Vf.  Tisue,  Addis.  313 76 

Spinks  VB.  Davis,  32  Miss.  152 16 

Spooner  vs.  Holmes,  102  Mass.  503 205 

Sprag  le  vs.  Train,  34  Vt.  150 557 

Squirpsvs.  Barber,  37  Vt.  55 176 

Stackhouse  vs.  O'Hara,  2  Harr.  88....  623 

Stackhouse  vs.  O'Hara 620 

Stackpole  vs.  Arnold,  11  Mass.  27.-439,  444 
Stacy  V8.  Dane  County  Bank,  12  Wis. 

629 240 

Stalnback  vs.  Rend,  11  Gratt.  281 377 

Stalner  vs.  Tysen,  3  Hill,  i:79 377 

Stansbury  vs.  United  States,  1  Ct.  of 

Ch.  123 483 

Stanley  vs.  Kelson.  28  Ala.  614 38 

Stair  vs.  York  Nat.   Bank,  55  Penn. 

364 693 

Stanton  vs.  Camp,  4  Barb.  274 463 

Stanton  vs.  New  York,  etc.,  Ry.  Co., 

69  Conn.  273 135 

State  vs.  State  Bank,  5  Ind.  353 30 

State  vs.  Boll,  34  Oiiio  St.  194 234 

State  vs.  Greensdale.  106  Ind.  864 635 

State  vs.  Houser,  63  lud.  155 334 

State  vs.  Jersey  City,  3  Dntcli.  493 64 

State  vs.  Johnson,  52  Ind.  197 21 

State  vs.  Murray,  28  Wis.  96 614 

State  vs.  Smith,  14  Wis.  4117 614 

State  vs.  Spartansburs  R.  R.  Co.,  8  S. 

C.  129 170 

State  vs.  Torinns,  26  Minn.  1 119 

State  of  Illinois  vs.  Delafleld,  8  Paige, 

637 195 

State  of  Illinois  vs.  Delafleld,  26  Wend. 

192 195 

State  Treasurer  vs.  Cross,  9  Vt.  289...    21 

Stearns  ve.  Felker,  28  Wi?.  594 316 

Stenton  vs.  Jerome,  54  N.  Y.  484 691 

Sterling,  Ex  parte,  16  Nev.  258 639 

Stetson  vs.  Gurney,  17  La.  168 687 

Stetson  vs.  Patten,  2  Greenl.  359 93 

Stevens  vs.  Babcock,  3  B.  A  Ad.  354...  2E0 

Stevens  vs.  Weston,  3  B.  &  C.  538 610 

Stevenson  vs.  Bay  City,  20  Mich.  44...  571 
e-tewart  vs.  Mather,  33  Witi.  344... .3!  1,  068 

St  e  war  t  vs.  Wood  war  d ,  60  Vt.  78 1 76 

Stillman  vs.  Fitzgerald,  37  Minn.  188..  191 
St.  John  TB.  Diet endorf,  12  Wend.  261 

6.37,  641 

St.  John  vs.  Redmond,  9  Port.  428 

199,  366 

St.  Louis,  etc.,  R.  R.  Co.  vs.  Mathers, 

104111.  267 19 

StockUy  vs.  Robiiison,  lOCasey.  315..  622 
Stoddard  vs.  Mcllvaln,  7  Rich.  535  ...  414 
Stokeley  vs.  Robinson,  34  Penn.  ol5...  620 
Storey  vs.  Ashton,  L.  R.  4  Q.  B.  476....  10 
Strachan  vs.  .Muxlow,  24  Wi-j.  1...298,  401 

Stratton  vs.  Allen,  1  U.  E.  Ur.  239 671 

Btrauas  vs.  Meertief,  64  Ala-  299 637 


PAQI 

Strelssgnth    vs.    National    Bank.   43 
Minn.  50 240 

Strong  vs.  Stewart,  9  Holsk,  137 376 

Stryker  vs.  Capsi-ly,  76  N.  Y.  53 6 

Sturdevaut  vs.  Hull,  59  .Me.  173 444 

Pummerviller  Railroad  Co.,  63  Mo.  391    86 

Sumner  vs.  Sanders,  61  .Mo.  89 106 

Sussdorfl  vs.  ScliUiidl,  .55  N.  Y.  319.255,311 
SwainKon  vs.  Northeastern  Ry,  3  Ex. 

D.341 522 

Swan  vs.  Nesmith,  7  Pick.  220 711 

Swan  vs.  Stedm;in,  4  Mete.  548 171 

Swartwout  vs.  Evans,  37  111.  442 80 

Swartz  vs.  Ballou,  47  Iowa,  188  ....103,  117 

Sweet  vs.  Bartlett,  4  8andf.  661 645 

Swinfen  vs.  Swinten,  27  L.  J.  Ch.  S5...  620 
Syeds  vs.  Hay,  4  T.  R.  260 487 

T. 

Taber  vs.  Perrolt,  2  Gall.  .56.1 240 

Tabor  vs.  Cannon,  8  Mete.  456 414 

Taftvs.  Buffum,  14  Piclr.3'3 3'3 

Taggart  vs.  Stauberry,  3  .\tc!  ean,  543.  3H7 

Taintor  vs.  PrenderRast,  3  Hill,  72 588 

Tallom  vs.  Mining  Co.,  55  Mirh.  147...  376 
Tankersley,  vs.  Anderson,  4  Deps.  45..  619 

Taileton  vs.  McGawley,  Peake,  205 (ill 

Tarjier  vs.  Walker,  L.  R.  1  Q.  B.  64L..  4.\5 

Tassel  vs.  Cooper,  9  C.  B.  509 .^92 

Tasker  vs.  Sheph.-rd,  6  H  &  N.  576. .328,  .538 
Tatterson  vs.  Suflf.jlk    Mfg.    Co.,  106 

Mass.  56 276 

Taylor  vs.  Bates,  5  Cow.  376 7(14 

Taylor  vs.  Brarll..y,30  N.  Y.  129 533 

Taylor  vs.  Caldwell,  3  B.  &  S.  826 268 

Taylor  vs.  Pl.imber,  3  M.  &  S.  .562 164 

Taylor  vs.  Robinson,  14  Cal.  396 162 

Taylor  vs.  Sp.-ars,  6  Ark.  381 496 

Temple  vs.  Pomroy,  4  Gray,  128 414 

Tenant  vs.  Elliott,  1  P.  &  P.  3 498 

Terhune  vs.  Collon,  2  Stock.  21 619 

Thacher  vs.  Pray,  113  .Mass.  291 140 

Thames     Iron     Works    vs.     Patent 

Derrick  Co.,  1  J.  &  H.  93 639 

Thatcher  vs.  Knylaiid,  3  C.  B.  234 45.5 

Thayer  vs.  Meeker,  86  111.  470 108 

The  Arab,  5  Jur.  417 662 

The  B.  F.  Woolt^ey,  4  Ftd.  RrM'.  553....  63'.» 

The  Lady  Franklin,  8  Wall.  325 681 

The  Ouachita  Cotton,  6  Wall.  521 S7 

Third  Nat.  BaTik  vs.  Harrison,  10  Fed. 

Rep.  243 671 

Third  National  Bank  vs.  Vicksburgh 

Bank.  61  Mis.s.  112 240 

Thomas  vs.  Atkinson,  38  Ind.  248 653 

Thomas  vs.  l^teele,  82  Wis.  3^7 6U 

Thomas  vs.  Winchester,  6  N.  Y.  3t>7..  620 

Thompson  vs.  Craig,  16  Abb.  S-J 187 

Thompson  vs.  Davenport,  B  B.  &  C. 

78 661 


XXVIU 


Oases  Cited. 


PAOB 

Thompson    VB.    Havelock,    1    Camp, 
527 290 

Thompson  vs.  Lyon,  20  Mo.  155 81 

Thompson  vs.  Perkins,  3  Mason,  232. 

; 597,  710 

Thompson  vs.  Schermerhorn,  6  N.  Y. 

92 233 

Thompson  vs.  Stewart,  3  Conn.  183..  354 

Thompson  vs.  Wood,  1  Hilt.  96 533 

Thornton  vs.  Proctor,  1  Anst.  94 523 

Thorpe  vs.  Stalhvood,  12  L.  J.  241...  127 

Thnrston  vs.  Percival,  1  Pick.  4 316 

Tier  vs  Lampson,  36  Vt.  179 298 

Tiernan  vs.  Commercial  Bank, 7  How. 

648 240 

Tilden  vs.  Barnard,  43  Mich.  376 445 

Tillier  vs.  Whitehead,  1  Dal!,  269....    29 
Titus  vs.  Mechanic's  National  Bank, 

35  N.  J.  L.  588 240 

Todd  vs.  Emly,  7  M.  &  W.  427,  8  Id. 

505 47 

Toledo,  etc.,  R.  R.  Co.  vs.  Rodrigues, 

47  111.  188 127 

Tool  Co.  vs.  Norris,  2  Wall.  45 

20,  21,  632 

Topham  vs.  Braddock,  1  Taunt.  572.  704 
Torrey  vs.  Bank  of  Orleans,  9  Paige, 

649,  7  Hill,  260 474 

Toiilmin  vs.  Steere,  8  Her.  209 568 

Tovviiaend  vs  Coriiintr,  23  Wend.  435 216 

Townsend  vs.  Hubbard,  4  Hill,  351  — 

216,  433,  438 

Townsend  vs.  Ingles,  Holt,  278 40 

Towiisley  vs.  Sumrall,  2  Pet.  170 246 

Trainor  vs.  Morrison,  78  Me.  160 403 

Trevor  vs.  Wood,  36  N.  Y.  307 527 

TrlgK  vs.  Jones,  46  Minn.  277 214 

Trimmer  vs.  Bayne,  9  Ves.  209..... 663 

Tripp  vs.  Bishop,  56  Penn.424 220 

Trist  vs.  Child,  21  Wall.  441 18,  22,  633 

Trudo  VB.  Anderson,  10  Mich.  857 126 

Trueman  vs.  Loder,  11  Ad.  &  El.  589 

439,  560.  588,  679 

Truesdrtil  vs.  Ward,  24  Mich.  117 187 

Trull  v^.  Granger,  8  N.  Y.  115 651 

Trumbull  vs.  Nicholson,  27  III.  149  ....  620 
Tru'idy  vs.  New  York  *  H.  8.  Co., 

6  Robt.  312 804 

Tucker  vs.  Lawrence,  56  Vt.  467 255 

Tuckf-.r  va  Wnolsey,  64  Barb  143 99 

Tucker    .Mfg.    Co.   vs.  Fairbanks,   98 

Mass.  U)l 444,  445 

Tyler  vk.  Freeman,  3  Cush.  261 CSt 

Tyler  vs.  H'lme.-',  38  Me.  238 191 

Tyler  VM.  I'arr,  .'.3  .Mo.  249 667 

Tyson  vs.  State  Batik,  6  Blackf.  225...  240 

U. 

Union  Bank  va,  Campbell,  i  Humph. 
391 672 


PAOB 
Union  Bank  vs.  Govan,  10  S.  &  M. 
333 619 

Union     Bank    vs.    Mlddlebrook,    33 
Conn.  95 117 

United  States  vs.  Parmele,  Paine,  252  589 
Unite!  States  vs.  State   Bank,  96  U. 

S.  30 689 

United  States  vs.  Villalonga,  23  Wall. 

42 719 

United  States  Bank  vs.  Davis,  2  HiU. 

451 572 

United  States  Rolling  Stock  Co.  vs. 

Railroad  Co.,  34  Ohio  St.  450 601 

Upham  vs.  Lefavour,  11  Mete.  174  -...  685 

Ui  ton  vs.  Archer,  41  Cal.  85 103 

Upton  vs.    Suffolk   County   Mills,  11 

Cush.  586 406,412 

Utica  Ins.  Co.  vs.  Lynch,  11  Paige.  620  636 
Utley  vfl.  Donaldson,  94  U.  S.  29 454 

V. 

Vail  vs.  Jersey,  etc.,   Co.,  82  Barb. 
574 275 

Vallette  vs.  Tedens,  132  111.  607 464 

Vanada  vs.  Hopkins,  1  J.  J.  IMarsh, 

255 376,  385,  386,  387.  388 

Van  Alen  vs.  American   Nat.  Bank, 

52  N.Y.I 897 

Vanderborg  vs.  Trnax,  4  Denio,  464...  611 
Vandeventer  vs.  Ford,  60  Ala.  610...  367 
Van  Duzen  vs.  Howe,  21  N.  Y.  631 ..  365 
Van  Eppes  V!i.  Smith,  21  Ala.  317....  3a 
Van  Epps  vs.  Van  Epps,  9  Puit^'e,  237  47» 
Van  Eps  vs.  Schenectady.  12  Johns, 

436 386,  339 

Van  Etta  vs.  Evenson,  28  Wis.  33.103,  133 
Van  Lien  vs.  Burns,  1  Hilt.  134... 304,  305 
Van  Wart  vs.  Wooley,  3  B.  &  C.  431)  241 

Varnum  vs.  Bellamy,  4  McL.  87 620 

Varnum  vs.  Evans,  2  McMul.  409....  433 

Vassar  vs.  Camp,  11  N.  Y.  441 627 

Veazie  vs.  Parker,  73  Me.  443 311 

Veazie  vs.  Williams,  8  How.  134..202,  203 

VentroKS  vs.  Smith,  10  Pet.  175. 393 

Vermilye  vs.   Express  Co.,  21  Wall. 

139 416 

Vila^i  vs.  Bryants.  13  Wis.  703 210 

Vilas  vs.  Downer,  21  Vt.  419 633 

Vinton  vs.  Baldwin,  95  lud.  433 524 

Violett  vs.  PattoD,  5  Cr.  143 105 

Virtjinia,  etc.,  R.   Co.  vs.  Say  res.  26 

Gratt.  828 675 

Vischer  vs.  Yates,  11  Johns.  30 499 

Vol  get  vs.  Ray,  131  Mass.  439 47 

Voorhees  vs.  •'■'ait,  3  Green,  348 509 

Vose  vs.  Dolan,  108  Mass.  156 103 

Vo83  vs.  Bachop.  5  Kans.59 248 

W. 

Wade  vs.  Witkington,  1  Allen,  563....  104 


Cases  Cited. 


zziz 


PAOE 
Walker  vs.  Bank  of  State  of  N.  Y., 

5  Seid.  583 215 

Walker  vs.  Osgood,  93  Mas-.  ^48  ...639,  599 

Walker  vs.  Ropan,  1  Wis.  597 68 

Walker  vs.  Scott,  8  Eng.  I}H 620 

Walker  vs.  Stevens,  79  111.  193 248 

Walker  vs.  Walker,  5  Heisk.  4-35.    209,  214 

Wa'.lHce  vs.  De Young,  98  111.  638 483 

Wallar^e  vs.  Floyd,  29  Pean.  184 275 

Wallis  vs.  Warren,  4  Ex.  361 631 

Wallrath  vs.  Whittekind,  26  Kan.  482.  698 

Walsh  vs.  Shumway,  65  111.  471 816 

Walsh  vs.  Stille,  2  Pars.  17 622 

Walton  vs.  Torrey,  Har.  Ch.  259 460 

Ward  vs.  Evans,  2  Halk.  443 855 

Ward  vs.  Smith,  7  Wall.  447 339 

Ward  vs.  Syme,  9  How.  Pr.  16 643 

Ward  vs.  Williams,  26111.  4.51 188 

Warlow  V8.  Harrison,  1 E.  &  E.  295 659 

Warner  vs.  Brid^'es,  6  Ark.  383 496 

Warner  vs.  Martin,  11  How.  209 15 

Warren   Bank   vs.  Suffolk   Bank,  10 

Cush.  583 250 

Warrick  vs.  Warrick,  3  Atk.  291 561 

Washburn  vs.  R.  R.  Co.,  3  Head.  638  27 
Washington  Bank  vs.  Lewis.  22  Pick. 

24 671 

Watkina  vs.  Vince,  2  Stark.  368 Ill 

Watson  vs.  Swann,  11  O.  B.  756 137 

Watts  vs.  Kavanaugh,  35  Vt.  34 298 

Webster  vs.  Scales,  4  Doug.  7 585 

Webster  vs.  Wray,  17  Neb.  579 355 

Weed  vs.  Adams,  37  Conn.  378 717 

Weed  vs.  Black,  2  McAr.  268 18 

Weed  vs.  Carpenter,  4  Wend.  219....  218 
Weigle,  SuccesBion  of,  18  La.  Ann.  49  619 
Weise  vs.  Supervisors,  51  Wis.  564...  275 
Welland  Canal  Co.  vs.  Hathaway,  8 

Wend.  480 424 

Wells  vs.  Elsam,  40  Mioh.  218 649 

Wellington    vs.  Jackson,   121   Mass. 

167 114,116 

Wells  vs.  Foster,  8  M.  &  W.  149 20 

Wells  vs.  Martin,  33  Mich.  478 128 

Wells  vs.  Rahway  Rubber  Co.,  4  O. 

E.  Green,  403 64 

Welsh  vs   German  American  Bank. 

73  N.  Y.  434 5«4 

Welsh   vs.  Hartford   Ins.  Co.,  73  N. 

Y.  10 64 

Welsh  vs.  Hole,  1  Dong.  238 634 

Wentworth  vs.  Day,  3  Mete.  852 455 

West  vs.  Ball,  12  Ala.  354 620 

West  vs,  Camden,  135  U.  S.  507 25 

Westerlo  vs.  DeWitt,  96  N.  Y.  840...  8S4 
Wetherby  vs.  Wetherby,  20  Wis.  520.  618 
Weymouth,  etc..   District,   V8.  Com- 
missioners, 108  Mass.  143 64 

Wharton  vs.  King,  69  Ala.  365 536 

Wheatley  vs.  Tutt.  4  Kan.  240 _    28 


PAOB 

Wheelock  vs.  Wheelwright,  6  Ma«8. 

104 488 

Wheipdale  vs.  Co"kf-on,  1  V»-8.  8 470 

Whi(  hcote  vs.  Lawrince.  8  Ve.s.  740.  4*59 
Whitaker  vs.  Saudifer,  1  Duvall,  261..  KiO 

White  vs.  Oorlies,  4ti  N.  Y.  467 627 

White  vs.  Dugtan,  140  Mass.  18 108 

White  vs.  LuiiKdon,  30  Vt.  599 657 

White  vs.  Madison,  26  N.  Y.  117 608 

White  vs.  Sanders,  32  Me.  188 195 

White  vs.  Skinner,  13  Johns.  307 651 

White  vs.  Wager,  25  N.  Y.  328 82.    33 

White  vs.  Westport  Cotton  Mfg.  Co., 

1  Pick.  215 423 

Whitehead  vs.   Tucket,  15  East,  400 

40,  372,  360 

Whitehead  vs.  Walker  9  M.  &  W.  506.  246 

Whitlock  vs.  Heard,  3  Rich.  88 175 

Whitney  vs.  Dutch,  14  Mass.  457. ...31,  609 

Whitney  vs.  Martine,  88  N.  Y.  53.5 6«7 

Whitney  vs.  Wyman,  101  U.  S.  392 ....  135 

Whittle  vs.  Newman,  34  Ga.  377 636 

Whitworth  vs.  Hart,  23  Ala.  313 40 

Wickersham  vs.  Chicago  Zinc  Co.  18 

Kans.  41 571 

Wickham  vs.  Wickham,  2  K.  &  J.  478 

712 

Wlggett  vs.  Fox,  11  Exch.  832 633 

Wieland  vs.  White,  109  Mass  392 630 

Wiggins  vs.  Burkham,  10  Wall.  129  ...  691 
Wilcox  vs.  Railroad  Co.,  24  Minn.  269.  83 
Wilkins  vs.  Carmlchael,  1  Doug.  104..  6.34 

Wilkinson  vs.  Black,  80  Ala.  329 537 

Williixms  vs.  Bail,  y,  L.  R.  1  H.  L.  200.  119 

Williams  vs.  Boyd,  75  Ind.  286 117 

Williams  vs.  Carwardine,  4  B.  &  Ad. 

631„ 660 

Williams  vs.  Crutcher,  5  How.  71....  103 
WilliamB  vs.  Getty,  31  Penn.  St.  461 

344,372 

Williams  V8  Golding.  L.  R.  1  C.  P.  69  7 
Williams  vs.  Jones,  3  H.  &  C.  603...  559 

Williams  vs.  Leslie,  111  Ind.  70 667 

Williams  vs.  Bobbins,  16  Gray,  77...  444 
Williams  vs.  School-District,  21  Pick. 

76 60,63 

Williams  vs.  Walker,  2  Sandf.   Ch. 

325 88 

Williams  vs.  Williams,  65  Wis.  300..  626 
Williams  vs.  Windley,  86  N.  C.  107..  4f« 

Williams  vs.  Woods,  16  Md.  220 238 

Williamson  vs.  Chicago,  etc.,  R.  Co., 

63  la.  126 1» 

Wlllinks  vs.  HoUingaworth,  6  Wheat. 

241 218 

Wills  V8.  Noyes,  12  Pick.  326 609 

Wilson,  In  re,  12  Fed.  Rep.  235 646 

Wilson,  In  re,  2  McCar 631 

Wilson  vs.  Hart,  7  Taunt.  295 467 

Wilson  vs.  Hayes,  40  Minn.  631 il9 

Wilson  V8.  Jennings,  8  Ohio  St.  628..  619 


YYIT 


Cases  Cited. 


PAGE 

Wilson  vs.  Kymer,  1  M.  &  S.  157- 635 

Wilson  vs.  btratton,  47  We.  120 408 

Wilson  vs.  Troup,  3  Cow.  195 3S6,  388 

Wilson   vs.  Tuniman,  6  M.  &  G.  236 

117,  123,  137,  158 

Wilson  vs.  Wadleigh,  36  Me.  4si6 620 

Wlnans  vs.  Jaqnes   10  Daly,  487 667 

Win<  h  vs.  Keeley,  1  T.  R.  019 685 

Win<  hester  vs.  Baltimore,  R.  R.  4 

Md.  231 671 

Wingate    vs.    Mechanic's   Bank,    10 

Penn.  St.  104 _  240 

WlDooski  Village  vs.  Gckey,  49  Vt. 

282 63. 

Wlnterbottom  vs.   Wright,  10  M.  & 

W.  109 520 

Wise  vs.  Wilson,  1  C.  &  K.  662 293 

Witherell  vs.  Gartham,  6  T.  R.  388..    54 

Wolcott  vs.  Wolcott,  19  Vt.  37 61 

Wolfe  vs.  Lewis,  19  How.  280 644 

Wolff  vs.  Koppel,  5  Hill,  458,  3  Denio, 

368 711 

Wolffe  vs.  State,  79  Ala.  201 595 

Wood,  Inre,  Hopk.  6 614 

Wood  V8.  Goodridf?e,  6  Cash.  117  101,  375 

Wood  vs.  McCain,  7  Ala.  806 162,377 

Wood  vs.  McCann,  6  Dana,  366 23 

Wood  vs.  Steele,  6  W:xlL  80 419 

Wood  vs.  Wheeler,  93  111.  153 135 

Woodruff  vs.  ."'Jonroe,  33  Md    146 117 

Woods  vs.  Stephens,  46  Mo.  655 .  668 


PAaa 
Woodward  vs.  Harlow,  28  Vt.  838....  228 
W.jrkman  vs.  Wright,  33  Ohio  St.  405 
118,  137 

Worrall  vs.  Munn,  6  N.  Y,  229 169,  440 

Wright  vs.  Dailey,  20.  Tex.  730 620 

Wright  vs.  Herrick,  128  Mass.  240 298 

Wright  vs.  Hood,  49  Wis.  235 400 

Wright  vs.  Roxburgh,  2 Sess.  Cas.  748..  532 

Wright  vs.  Tebbitts.  91  U.  S.  252. 631 

Wright  vs.  Wright.  70  N.  Y.  100 643 

Wylie  vs.  Coxe,  15  H(  w.  415 631,  647 

Wylie  vs.Marine  Bank,  61  N.  Y.  416.303,  305 
Wylson  V8.  Dunn,  34  Ch.  Div.  509 223 

Y. 

Yalden,  Ex  parte,  L.R.  4  C.  D.  129 639 

Yerkes  vs.  Richards,  153  Penn.  646...  218 
Yerrington  vs.  Greene,  7  R.  I.  589. .328,  538 
York  Bank  vs.  Appleton,  17  Me.  .55....  620 
York  Bui!di73g  Assn.  vs.  Mackenzie, 

8  Brown  P.O.  42 470 

Young  vs.  Grote,  4  Bing.  253 104 

Young  vs.  Hughes,  32  N.  J.  Eq.  372 479 

Young  vs.  Scott,  25  La.  Ann.  313 087 

Young  vs.  White,  7  Beav.  606 203 


Zinck  vs.  Walker,  2  W.  Bl.  1154 718 

Zottman  vs.  San  Francisco,  20  CaL  96.  110 


CASES  ON  AGENCY, 

AERANGED  ACCORDING  TO  THE  CLASSIFICATION 
OF  MECHEM  ON  AGENCY. 


CASES  ON  AGENCY. 


BOOK     I. 


OF  THE  RELATION  IN  GENERAL:   HOW  CREATED 
AND  TERMINATED. 


CHAPTER    I. 

DEFINITIONS    AND    DIVISIONa 


RELATION    OF    AGENCY    TO    SERVICE. 


(Deaesly  and   Bell,   Ckoavn   Cases,  600.) 

REGINA  vs.   WALKER. 
C  English  Court  of  Criminal  Apjjeal,  May,  1858. J 

The  prisoner  was  convicted  of  embezzlement  under  a  statute, 
as  a  servant,  and  the  case  was  made  out  if  the  prisoner  was 
shown  to  have  been  a  servant  within  the  statute. 

The  prosecutors,  who  were  manure  manufacturers,  engaged  the 
prisoner,  who  kept  a  refreshment  house  at  B.,  to  get  orders  for 
their  manures,  which  they  supplied  from  their  stores.  The  pris- 
oner was  to  collect  the  money  and  pay  it  at  once  to  them,  and 
was  also  to  send  a  weekly  account.  He  was  called  agent  for  the 
B.  district.      He  was  to  go  through  the  county,  see  the  farmers 


2  Oases  oit  Agency.  [Book  I 

and  get  orders,  and  was  to  be  continually  during  the  season  among 
the  farmers.  Subsequently  the  prosecutors  sent  large  quantities 
of  manure  to  stores  at  B.,  which  were  under  the  control  of  the 
prisoner,  who  took  them  in  his  own  name  and  paid  the  rent  to 
the  owner,  but  was  repaid  such  rent  by  the  prosecutors  when  the 
accounts  were  adjusted.  The  prisoner  supplied  the  manure  from 
these  stores;  but  it  did  not  appear  that  the  former  mode  might 
not  have  been  resumed  if  thought  desirable.  The  prisoner  signed 
a  proposal  to  a  guarantee  society  to  insure  the  prosecutors,  which 
stated  that  his  salary  was  £1  per  annum,  besides  a  commission 
which  was  estimated  at  £65  per  annum,  and  it  was  proved  that 
the  prosecutors  had  agreed  to  pay  the  salary  of  £1  per  annum. 
Having  appropriated  money  received  from  customers,  the  prisoner 
fraudulently  returned  their  names  as  the  names  of  persons  who 
had  not  paid. 

The  case  was  argued  before  Pollock,  0.  B.,  Wightman,  J., 
WiLLES,  J.,  Beam  WELL,  B.,  and  Byles,  J. 

Qiffard  appeared  for  the  Crown  and  M'Intyre  for  the  prisoner. 

M'Intyre:  I  submit  that  the  prisoner  was  not  a  servant  within 
the  statute.  The  evidence  rather  shows  that  he  was  a  factor. 
To  have  been  a  servant,  the  prisoner  must  have  been  bound  to 
obey  the  commands  of  his  employers,  which  he  clearly  was  not. 
The  prisoner  took  the  stores,  and  though  he  was  afterwards  reim- 
bursed by  the  prosecutors,  the  stores  were  under  his  control,  and 
from  these  stores  he  supplied  the  goods.  The  goods  were  sup- 
plied to  him  by  the  prosecutors,  with  whom  he  opened  an  account, 
and  be  supplied  the  goods  to  whom  he  liked.  He  was  not  bound 
to  give  any  definite  amount  of  time  or  labor,  nor  was  he  bound, 
as  a  servant  is,  to  obey  any  particular  order.  He  had  other 
business  of  his  own  to  attend  to,  and  throughout  the  whole 
matter  he  was  treated  as  an  agent  and  not  as  a  servant. 

WiLLiB,  J.,  referred  to  Regina  vs.  Bailey,  Dearsly  &  Bell,  121, 

M'Intyre:  That  case  was  not  argued  for  the  prisoner,  and 
In  Regina  vs,  Goodhury,  8  Car.  &  P.  6G5,  Parke,  B.,  said  he 
was  of  opinion  that  a  man  could  not  be  the  servant  of  several 
persons  at  the  same  time,  but  was  rather  in  the  character  of  an 
agent;  and,  referring  to  Rex  vs.  Cart,  Russ.  &  Ry.  198,  in  which 
a  contrary  doctrine  had  been  held,  his  lordship  said  he  wished 
to  have  that  question  further  considered   by  the  judges. 

The  salary  of  £1  a  year  was  merely  a  colorable  thing  in  order 
to  get  security  from  the  guarantee  society.     It  is  the  case  of  a 


Chap.  I  ]  Regina  vs.  Walkek.  9 

commission  agent,  and  the  prisoner  is  styled  an  agent,  and 
treated  as  a  debtor  and  not  as  a  servant. 

Giffard:  In  one  sense  no  doubt  the  prisoner  was  an  agent, 
but  he  was  also  a  servant  within  tlie  meaning  of  the  statute. 
It  is  not  necessary,  to  constitute  a  man  a  servant,  that  he  should 
be  under  an  obligation  to  obey  every  lawful  command  of  the 
master. 

Pollock,  C.  B.:    As,  to  clean  his  boots. 

Gijfard:  The  prisoner's  duty  was  to  collect  orders,  receive 
money,  and  pay  the  money  over  at  once  to  the  prosecutors. 

WiGHTMAN,  J.:    Every  factor  does  that. 

Gijfard :    Every  factor  may,  but  he  is  not  compelled  to  do  so. 

WiGHTMAN,  J.:     Was  the  prisoner  bound  to  get  orders? 

Giffard:  Perhaps  not;  but  in  Rex  vs.  Carr,  supra,  a  person 
employed  upon  commission  to  travel  for  orders  and  collect  debts 
was  held  to  be  a  clerk  within  the  39  Geo.  III.  c.  85,  although 
he  was  employed  by  many  different  houses  upon  each  journey 
and  paid  his  own  expenses  out  of  his  commission,  and  did  not  live 
with  any  of  his  employers,  nor  act  in  any  of  their  counting  houses. 

WiGHTMAN,  J.:  Suppose  a  publican  employed  for  purposes  of 
this  kind,  would  he  be  a  servant? 

Gijfard:  He  might  or  might  not,  according  to  the  facts.  The 
mode  of  remuneration,  whether  by  salary  or  otherwise,  is  no  test, 
Regina  vs.  Worthy,  3  Den.  C.  0.  33;  no  exact  line  can  be  drawn, 
and  no  inflexible  rule  can  be  laid  down;  each  case  must  depend 
upon  its  ovm  facts.  The  case  of  a  commercial  traveller  is  similar 
to  this;  such  a  traveller  has  been  held  to  be  a  servant  within 
the  statute,  and  the  duties  of  the  prisoner  are  not  distinguishable 
from  his.  He,  like  the  prisoner,  is  employed  to  obtain  orders, 
and  is  bound  to  furnish  accounts. 

Byles,  J.:   So  is  a  factor;  the  law  implies  that  contract  for  him. 

Pollock,  C.  B.:  What  is  the  difference  between  a  servant  and 
an  agent? 

Gijfard :  Every  servant  is  an  agent,  although  every  agent  may 
not  be  a  servant.  The  parties  were  at  liberty  to  contract  that 
the  relation  of  master  and  servant  should  exist  between  them, 
and  they  did  so  contract.  By  the  alteration  made  in  the  terms 
between  the  prosecutors  and  the  prisoner  a  new  contract  was 
created,  and  a  salary  was  agreed  upon. 

WiGHTMAN,  J.:  The  salary  was  obviously  only  for  the  purpose 
of  getting  the  insurance  effected. 


4  Cases  on  Agency.  [Book  I 

Giffard:  Nor  was  it  necessary  in  order  to  create  the  relation 
of  master  and  servant.  In  Hex  vs.  Ward,  8  Carr.  &  P.  154,  it 
was  held  that  an  extra  collector  of  poor  rates,  whose  remnneration 
was  paid  out  of  the  parish  fnnd  by  a  per  centage  on  his  collec- 
tions,  was  a  servant  or  clerk  within  the  meaning  of  the  statute 
39  Geo.  III.  c.  85;  and  Regina  vs.  Callaghan,  Gow.  N.  P.  Gas. 
168,  also  shows  that  a  narrow  construction  must  not  be  put  upon 
the  words  "clerk  or  servant." 

The  question  is  whether  it  was  impossible  to  say,  upon  thia 
evidence,  that  the  prisoner  was  a  servant.  Unless  it  was,  the 
conviction  must  be  supported,  for  the  question  was  left  by  the 
judge  on  the  trial  to  the  jury,  and  they  found  that  the  prisoner 
was  a  servant.  The  objection  that  he  could  not  be  servant  to 
more  than  one  person  is  answered  by  the  decision  in  Beghia  v§^ 
Bailer/,  Dearsly  &  Bell,  121. 

M'Intyre  (in  reply):  In  Regina  vs.  Worthy  there  was  a  direct 
and  distinct  contract  to  serve  as  "bailiff,"  and  that  case  is  there- 
fore entirely  distinguishable  from  the  present.  The  great  dis- 
tinction between  this  case  and  all  the  cases  cited  is,  that  the 
prisoner  had  the  entire  authority  over  the  goods,  which  were  under 
his  control,  and  this  makes  him  a  factor  and  not  a  servant. 
Cur.  adv.  vult. 

The  judgment  of  the  court  was  delivered,  on  the  Ist  of  May, 
1858,  by  Pollock,  0.  B. :  We  are  of  opinion  that  the  evidence  in 
this  case  did  not  establish  that  the  prisoner  was  the  servant  of  the 
prosecutors,  and  that  the  relation  shown  to  have  existed  between 
them  was  rather  that  of  principal  and  agent.  We  therefore  think 
this  conviction  must  be  quashed. 

Conviction  quashed. 


(90  New  York,  213.) 

WAKEFIELD  vs.  FARGO. 

fNew  York  Court  of  Appeals,  October,  ISSt.) 

Action  brought  to  enforce  the  claim  of  an  alleged  laborer  or 
servant  of  The  High  Rock  Congress  Spring  Company,  a  corpora- 
tion, against  defendant  as  a  stockholder  in  said  corporation,  said 
action  being  based  upon  the  statute  mentioned  in  the  opinion.^ 


Chap.  I]  Wakefield  vs.  FAiiGo.  6 

Chas.  S.  Lester,  for  appellant. 

Mailhew  Hale,  for  respondent. 

Danforth,  J.  Wo  agree  with  the  General  Term  in  the  concln- 
eion  that  The  High  Rock  Congress  Spring  Company  was  organized 
under  the  act  of  18G3,  chapter  63,  entitled  "An  act  to  extend  the 
operation  and  effect  of  the  act  passed  Fehruary  17,  1848,  entitled 
*An  act  to  authorize  the  formation  of  corporations  for  manufactur- 
ing, mining,  mechanical  or  chemical  purposes; ' "  and  that  by  the 
provisions  of  section  2,  the  stockholders  composing  it  became  sub- 
ject to  the  liabilities  imposed  by  section  18  of  the  original  act,  and 
therefore  ''liable  for  all  debts  that  may  be  due  and  owing  to  their 
laborers,  servants  and  apprentices  for  services  performed  for  such 
corporation." 

We  also  agree  with  that  court  in  the  opinion  that  the  appellant 
Judson,  was,  as  between  himself  and  the  creditors  of  the  corpora- 
tion, a  stockholder,  and  so  within  the  purview  of  that  section.  He 
held  the  certificate  of  stock,  and  the  books  of  the  company  dis- 
closed this  to  be  his  relation  to  it.  By  admissions  in  the  pleadings, 
the  other  appellants  occupy  the  same  position.  But  there  is  error 
in  the  judgment  to  the  extent  of  the  "Clark"  claim.  He  was  not, 
within  the  meaning  of  the  act,  a  "laborer,  servant  or  apprentice." 
It  is  true  he  is  characterized  in  the  findings,  in  general  terms,  as 
both  "  laborer  "  and  "  servant,"  but  specifically  is  described  as  the 
bookkeeper  and  general  manager  of  the  company,  and  his  duties 
accord  therewith.  He  kept  an  account  of  all  the  receipts  and  dis- 
bursements of  the  company,  and,  in  the  absence  of  the  superin- 
tendent, had  the  charge  and  control  of  its  business.  He  "worked 
by  the  year,"  was  employed  at  a  yearly  salary  of  $1,200,  and  it  is  an 
indebtedness  so  created  which  has  been  allowed  in  this  action. 

A  stockholder  is  not  liable  for  the  general  debts  of  a  corpora- 
tion, if  the  statute  creating  it  has  been  complied  with.  The  clause 
in  question  creates  a  privileged  class,  into  which  none  but  the 
humblest  employes  are  admitted,  and  the  distinction  which  in 
practical  life  is  easily  discernable  between  president,  director,  offi- 
cer, agent  and  laborer,  at  once  disappears  in  the  face  of  such  a 
judgment  as  we  have  before  us.  Clearly  a  distinction  is  made  by 
the  statute.  The  stockholder  must  pay,  not  debts  due  to  all 
employes  of  the  company,  but  those  due  to  "  laborers,  servants 
and  apprentices,"  and  not  all  debts  due  to  them,  but  only  such  as 
are  duo  for  "services"  performed  for  such  corporation.  It  is 
plain  we  think,  that  the  services  referred  to  are  menial  or  manual 


6  Oases  on  Aqekcy.  [Book  I 

Bervices, — that  he  who  performs  them  must  be  of  a  class  whose 
members  usually  look  to  the  reward  of  a  day's  labor  or  service  for 
immediate  or  present  support,  from  whom  the  company  does  not 
expect  credit,  and  to  whom  its  future  ability  to  pay  is  of  no  con- 
sequence; one  who  is  responsible  for  no  independent  action,  but 
who  does  a  day's  work,  or  a  stated  job  under  the  direction  of  a 
superior  (Gordon  vs.  Jennings,  L.  R.  9  Q.  B.  Div.  45;  Dean  vs. 
DeWolf,  16  Hun,  186,  affirmed,  82  N.  Y.  626).  Such  persons 
are  described  in  the  common  law,  in  terms  adopted,  as  is  reasona- 
ble to  suppose,  in  the  statute  before  us.  Speaking  of  master  and  ser- 
vant, Blackstone  (B.  1,  chap.  14)  says:  "The  first  sort  of  ser- 
vants acknowledged  by  the  law  of  England  are  menial  servants. 
Another  species  of  servants  are  called  apprentices.  A  third 
species  of  servants  are  laborers,  who  are  only  hired  by  the  day  or  the 
week."  He  also  speaks  of  "stewards,  factors,  and  baliffs,"  as  per- 
haps constituting  a  fourth  class.  But  this,  doubtingly,  **  because 
they  serve  in  a  superior,  ministerial  capacity,"  and  in  view  of  the 
declarations  already  made  by  this  court  as  to  the  object  of  the 
statute  [Ooffm  vs.  Reynolds,  37  N.  Y.  640;  Gurncy  et  al.  vs. 
Atlantic  <&  Great  Western  Railway  Co.  et  al.,  58  Id.  358;  Ahin, 
Administrator  vs.  Wasson,  24  Id.  482;  StryTcer  vs.  Cassidy,  76 
Id.  50,  32  Am.  Eep.  262),  it  may  be  added  that  as  such  individ- 
uals occupy  positions,  and  are  usually  of  such  capacity  as  enables 
them  to  look  out  for  themselves,  they  are  not  within  the  privilege 
of  the  statute.  To  the  language  of  the  act  must  be  applied  the 
rule  common  in  the  construction  of  statutes,  that  when  two  or 
more  words  of  analogous  meaning  are  coupled  together,  they  are 
understood  to  be  used  in  tlieir  cognate  sense,  express  the  same 
relations,  and  give  color  and  expression  to  each  other.  Therefore, 
although  the  word  "  servant"  is  general,  it  must  be  limited  by  the 
more  specific  ones,  "  laborer  and  apprentice "  with  which  it  is 
associated,  and  be  held  to  comprehend  only  persons  performing 
the  same  kind  of  service  that  is  due  from  the  others.  It  would 
violate  this  rule  to  hold  that  the  intermediate,  or  second  class, 
represented  a  higher  grade  than  the  class  first  named. 

A  general  manager  is  not  ejvsdem  generis  with  an  apprentice  or 
laborer;  and  although  in  one  sense  he  may  render  most  valuable 
services  to  the  corporation,  he  would  not  in  popular  language  be 
deemed  a  servant.  The  word  used  is  no  doubt  broad  enough,  and 
might  without  exaggeration,  represent  all  persons  connected  with 
the  administration  or  furtherance  of  the  affaire  of  a  corporation ;  in 


Ohap.  I]  Wakefield  vs.  Fargo.  7 

this  instance,  from  the  one  who  dips  or  bottles  the  water,  to  the 
president,  but  this  would  manifestly  be  too  general.  **  Laborer  or 
apprentice"  are  words  of  limited  meaning,  and  refer  to  a  particular 
class  of  persona  employed  for  a  defined  and  low  grade  of  service 
performed,  as  before  suggested,  without  responsibility  for  the  acts 
of  others,  themselves  directed  to  the  accomplishment  of  an  appointed 
task  under  the  supervision  of  another.  They  necessarily  exclude 
persons  of  higher  dignity,  and  require  that  one  who  seeks  his  pay 
as  servant,  should  bo  of  no  higher  grade  than  those  enumerated  as 
laborers  or  of  lesser  quality.  A  statute  which  treats  of  persons  of 
an  inferior  rank  cannot  by  any  general  words  be  so  extended  as  to 
embrace  a  superior;  the  class  first  mentioned  is  to  be  taken  as  the 
most  comprehensive,  "  sjjecialia  generalihus  derorjmit."  (Black- 
stone's  Intro,  section  3;  Satidiman  vs.  Breach,  7  B.  &  C.  96;  lieg.  vs. 
Cleworth,  4  B.  &  S.  927;  Kitchen  vs.  Shaw,  6  A.  &  E.  729;  Bran- 
well  vs.  Pennech,  7  B.  &  C.  536;  Williams  vs.  Golding,  L.  R.  1  C. 
P.  69;  Broom's  Maxims,  635;  Smith  vs.  People,  47  N.  Y.  337. 
Allen,  J.) 

The  decisions  already  made  by  us  and  above  cited  also  seem  to 
exclude  the  claim  in  question.  No  two  cases  are  alike,  but  the 
principle  on  which  the  ones  referred  to  were  decided,  control  here. 
On  the  other  hand  the  respondent  brings  to  our  attention  Hovey  vs. 
Ten  Broeck,  3  Rob.  316,  where  a  conclusion  was  reached  that  the 
plaintiff  "a  man  of  all  work,"  who  had  a  complete  supervision  of 
the  property,  men  and  business  of  the  company,  who  also  kept  their 
books,  and  was  to  receive  for  his  services,  at  the  rate  of  $500  per 
annum,  was  as  to  some  matters  a  laborer,  and  others  a  servant,  upon 
the  ground  that  as  laborer  he  performed  manual  work,  and  at  other 
times  as  *'  servant "  rose  above  it;  when  he  did  that  we  think  he 
went  beyond  the  statute.  The  word  "servant "  must  be  construed 
by  its  associates.  It  stands  between  "  laborer  "  and  *'  apprentice," 
and  can  represent  no  higher  degree  of  employment.  In  Kincaid  vs. 
Dwinelle,  59  N.  Y.  548,  also  cited,  the  question  wajs  not  presented. 

The  claim  of  Clark  was  improperly  allowed, 


8  Cases  ox  Agency.  [Book  I 

(132  United  States,  518.) 

SINGER  MANUFACTURING  COMPANY  vs.  RAHN. 

(Supreme  Court  of  tlie  United  States,  December,  1889.) 

This  was  an  action  bronght  by  Rahn  against  the  company  to 
recover  damages  for  a  personal  injury  which  the  plaintiff  sustained 
by  reason  of  the  careless  driving  of  a  horse  and  wagon  by  one  Cor- 
bett,  who  was  alleged  to  be  the  servant  of  the  defendant,  and 
engaged  in  its  business.  The  defendant  denied  that  Corbett  was 
its  servant,  but  alleged  that  he  was  engaged  in  selling  sewing 
machines  of  the  defendant's  manufacture  on  commission,  and  was 
an  independent  contractor.  The  defendent  put  in  evidence  the 
contract  under  which  Corbett  was  at  work,  the  terms  of  which 
sufficiently  appear  from  the  opinion. 

Qrosvenor  Lowry  and  Jos.  S,  Auerhach,  for  plaintiff  in  error. 
W.  P.  Clough,  John  W,  Willis,  and  Chas.  A.  Mert,  for  detend&nt 
in  error. 

Gray,  J.  The  general  rules  that  must  govern  this  case  are 
undisputed,  and  the  only  controversy  is  as  to  their  application  to 
the  contract  between  the  defendant  company  and  Corbett,  the 
driver,  by  whose  negligence  the  plaintiff  was  injured. 

A  master  is  liable  to  third  persons  injured  by  negligent  acts 
done  by  his  servant  in  the  course  of  his  employment,  although  the 
master  did  not  authorize  or  know  of  the  servant's  act  or  neglect,  or 
even  if  he  disapproved  or  forbade  it.  rhiladelphia  &  Reading 
Railroad  vs.  Derby,  14  How.  (U.  S.)  408,  486.  And  the  relation 
of  master  and  servant  exists  whenever  the  employer  retains  the 
right  to  direct  the  manner  in  which  the  business  shall  bo  done,  as 
well  as  the  result  to  be  accomplished,  or,  in  other  words,  "  not 
only  what  shall  be  done  but  how  it  shall  be  done.*'  Railroad  Co. 
vs.  Ilanning,  15  Wall.  (U.  S.)  649,  656. 

The  contract  between  the  defendant  and  Corbett,  npon  the  con- 
struction and  effect  of  which  this  case  turns,  is  entitled  *'  Can- 
vasser's Salary  and  Commission  Contract."  The  compensation  to 
be  paid  by  the  company  to  Corbett,  for  selling  its  machines, 
consisting  of  *'  a  selling  commission  "  on  the  price  of  machines  sold 
by  him,  and  *'a  collecting  commission"  on  the  sums  collected  ol 
the  purchasers,  is  uniformly  and  repeatedly  spoken  of  as  made  for 


Chap.  I]  Manufacturing  Co.  vs.  Eahn.  9 

his  "  Bervices.**  The  company  may  discharge  him  by  terminating 
the  contract  at  any  time,  whereas  he  can  terminate  it  only  upon 
ten  days'  notice.  The  company  is  to  furnish  him  with  a  wagon; 
arid  the  horse  and  harness  to  be  furnished  by  him  are  **  to  be  used 
exclusively  in  canvassing  for  the  sale  of  said  machines  and  the 
general  prosecution  of  said  business." 

But  what  is  more  significant,  Corbett  "  agrees  to  give  his  exclu- 
sive time  and  best  energies  to  said  business,"  and  is  to  forfeit  all 
his  commissions  under  the  contract,  if,  while  it  is  in  force,  he  sells 
any  machines  other  than  those  furnished  to  him  by  the  company, 
and  he  *'  further  agrees  to  employ  himself  under  the  direction  of 
the  said  Singer  Manufacturing  Company,  and  under  such  rules  and 
instructions  as  it  or  its  manager  at  Minneapolis  shall  prescribe." 

In  short,  Corbett,  for  the  commissions  to  be  paid  him,  agrees  to 
give  his  whole  time  and  services  to  the  business  of  the  company;  and 
the  company  reserves  to  itself  the  right  of  prescribing  and  regulat- 
ing not  only  what  business  he  shall  do,  but  the  manner  in  which  he 
shall  do  it;  and  might,  if  it  saw  fit,  instruct  him  what  route  to 
take,  or  even  at  what  speed  to  drive. 

The  provision  of  the  contract,  that  Corbett  shall  not  use  the 
name  of  the  company  in  any  manner  whereby  the  public  or  any 
individual  may  be  led  to  believe  that  it  is  responsible  for  his 
actions,  does  not  and  cannot  affect  its  responsibility  to  third  per- 
sons injured  by  his  negligence  in  the  course  of  his  employment. 

The  circuit  court  therefore  rightly  held  that  Corbett  was  the 

defendant's  servant,  for  whose  negligence  in  the  course  of  his 

employment,   the    defendant   was    responsible    to    the    plaintiff. 

Railroad   Co.  vs.  Ilanning,  above  cited;   Linnehan  vs.   Rollijis, 

137  Mass.  123,  50  Am.  Eep.  287;  liegina  vs.  Turner,  11  Cox  Crim. 

Cas.  551. 

Affirmed. 


(16  Law  Reports,  Ireland,  225.) 

WILSON  vs.    OWENS. 

(Irish  Exchequer  Division,  May,  1885.) 

Owens  was  a  shop-keeper  who  kept  a  pony  and  trap  for  hie 
domestic  use.  lie  kept  a  man  McNally  who  usually  drove  the 
pony.    In  his  shop  he  had  a  clerk  Egan.    While  Owens  was  absent 


10  Cases  on  Agency.  [Book  I 

in  England,  his  brotlier-in-law  Qninn  came  to  his  honse  for  a  visit. 
When  Quinn  left  he  had  McNally  get  up  the  pony  and  trap  and 
then  had  Egan  drive  him  to  the  railway  station.  On  the  way  back, 
Egan  drove  into  plaintiff's  carriage  and  did  serious  injury.  Action 
to  hold  Owens  liable. 

Boyd,  Q.  C,  and  Keogh,  for  plaintiff. 

Atkinson,  Q.  C,  with  Houston,  Q.  C,  and  Sandford,  for  defendant. 

Dowse,  B.  (After  stating  the  facts.)  The  question  simply  is, 
were  there  any  facts  proved  upon  which  the  jury  could  reasonably 
and  legitimately  find  the  defendant  guilty  of  negligence  by  himself 
or  his  servant?  There  is  no  difference  between  the  parties  as  to 
the  law  as  laid  down  in  the  decisions  cited  before  us.  That  law  is 
plainly  written.  *'  He  runs  that  readeth  if  The  only  difficulty 
is  as  to  the  application  of  the  law  to  this  particular  case.  "We  have 
been  referred  to  the  cases  of  Goodman  vs.  Keniiell,  3  C.  &  P.  167; 
Joel  vs.  Morison,  6  0.  &  P.  601;  Fatten  vs.  Ilea,  2  0.  B.  (N.  S.) 
606,  and  Storey  vs.  Ashton,  L.  R.  4  Q.  B.  476.  The  same  law  is 
stated  at  greater  length  in  the  judgment  of  Coleridge,  C.  J.,  in 
Rayner  vs.  Mitchell,  2  0.  P.  Div.  357,  There  is  also  a  case  of 
Ci)rmach  vs.  Digly,  I.  R.  9  C.  L.  557 — a  decision  of  this  court — 
in  which  wo  recognize  and  apply  the  well-settled  rule  of  law  gov- 
erning cases  of  this  description.  The  rule  of  law  in  its  applica- 
tion is  founded  upon  the  answer  to  be  given  to  any  of  the  following 
questions:  Had  the  servant  implied  authority  to  do  the  act,  in  the 
doing  of  which  the  injury  was  occasioned?  Did  the  master  impliedly 
sanction  the  act?  Was  the  act  done  with  the  defendant's  authority 
and  in  the  course  of  the  servant's  business  as  defendant's  servant? 
In  Storey  vs.  Ashton,  Cockburn,  0.  J.,  says:  ''The  true  rule  is 
that  the  master  is  only  responsible  so  long  as  the  servant  can  be 
said  to  be  doing  the  act,  in  the  doing  of  which  he  is  guilty  of  neg- 
ligence, in  the  course  of  his  employment  as  servant."  There  is  no 
material  difference  whether  the  party  committing  the  injury  is  a 
servant  or  agent  of  the  defendant.  A  servant  is  an  agent.  The 
principal  is  responsible  for  the  acts  of  his  agent,  and  this  case  is 
only  an  application  of  the  doctrine  of  respondeat  superior.  That 
this  is  the  law  is  beyond  all  dispute.  •  •  ♦  It  was  admitted  by 
Mr.  Boyd  during  the  trial  that  Quinn  was  not  a  servant  or  agent 
of  the  defendant,  and  therefore  that  he  had  no  authority  from  the 
defendant  to  take  out  the  trap.  His  act  could  not  therefore  bind 
the  defendant.    As  regards  Egan,  I  might  be  of  a  different  opinion 


Cbap.  I]  Wilson  vs.  Owens.  11 

abont  tlie  defendant's  liability  if  Egan  was  in  tbe  habit  of  driving 
tbe  trap,  or  bad  ever  driven  it  himself  to  defendant's  knowledge. 
On  this  occasion  it  was  not  Egan  who  ordered  out  the  vcliicle. 
What  would  have  been  Owen's  liability  if  the  accident  had  hap. 
pened  when  Qninn  was  in  the  trap?  There  was  no  evidence  that 
Egan  had  any  authority  from  the  defendant  to  drive  himself. 
McNally  was  the  man  left  in  charge  of  the  vehicle,  and  McNally 
was  the  man  who  always  drove  the  defendant  when  at  home.  Why 
should  he  not  have  done  so  when  defendant  was  absent?  The  case 
would  have  been  very  diHerent  if  this  accident  had  happened  when 
McNally  was,  according  to  his  known  custom,  driving  the  trap. 
Take  the  case  of  a  gentleman  who  goes  away  from  home,  leaving  a 
house  steward,  a  housekeeper,  an  ordinary  servant,  or  a  butler,  in 
charge  of  his  establishment,  and  leaving  his  horse  and  car  in  the 
care  of  his  coachman  or  groom,  does  that  give  the  person  in  charge 
of  the  house  authority  to  drive  the  horse  and  car  in  his  master's 
absence?  And  if  an  accident  happens  through  the  negligent  driv- 
ing of  this  person,  am  I  to  be  told  that  the  master  is  to  be  liable 
for  that?  I  cannot  agree  in  an  application  of  the  law  which  would 
hold  the  master  liable  in  such  a  case.  There  is  nothing  in  the  evi- 
dence reasonably  to  show  that  Egan  ever  received  authority  from 
Owens  to  do  what  he  did.  I  am  very  reluctant  to  be  bound  to  differ 
from  the  Chief  Baron,  but  under  all  the  circumstances  I  think  the 
verdict  ought  to  have  been  directed  for  the  defendant,  on  the  simple 
ground  that  there  was  no  evidence  proper  to  be  submitted  to  the 
jury  that  Egan  was  the  defendant's  servant,  so  as  to  bind  him  by 
his  acts  when  the  accident  happened. 


U  Oases  on  Aqenot,  [Book  I 


CHAPTER  11. 

POE  WHAT  PURPOSES  AN  AGENCY  MAY  BE  CEEATED. 


(113  Massachusetts,   133,   18  Am.   Eep.   459.) 

EICE  vs.   WOOD. 

(Supreme  Judicial  Court  of  Massachusetts,  September,   1S7S.J 

Action  in  contract  to  recover  commissions  as  a  broker.  Defend- 
ant requested  the  court  to  charge  that  a  broker  acting  for  both 
parties  cannot  recover  commissions  from  either,  unless  both  knew 
of  and  assented  to  his  double  agency.  The  court,  however, 
charged  that  he  could  recover  from  the  party  who  had  knowledge 
of  it.     Plaintiff  recovered  and  defendant  alleged  exceptions. 

F.  T,  Blackmer,  for  defendant 

W.  A.  Gile  and  C.  A.  Merrill,  for  plaintiffs. 

Dbvens,  J.  In  this  case  there  was  evidence  at  the  trial  in  the 
court  below  that  the  plaintiffs  had  been  employed  by  a  third  person, 
who  had  promised  to  pay  them  a  commission  therefor,  to  dispose 
of  certain  real  estate,  and  that  afterward,  without  the  knowledge 
of  such  person,  an  agreement  was  made  between  the  plaintiffs 
and  the  defendant,  by  which  the  plaintiffs  were  employed  to  act 
for  the  defendant  in  the  exchange  of  certain  stocks  hold  by  him  for 
real  estate,  and  were  promised  a  commission  if  such  exchange 
should  be  effected,  the  defendant  knowing  at  the  time  that  the 
plaintiffs  were  employed  for  a  commission  to  sell  such  real  estate; 
and  further,  that  afterward  the  plaintiffs  introduced  the  defendant 
to  the  owner  of  such  real  estate  and  by  the  instrumentality  of  the 
plaifitiffa  the  exchange  of  defendant's  stock  for  such  real  estate  was 
effected. 

If  this  were  an  action  by  the  plaintiffs  against  the  owner  of  the 
real  estate,  for  commissions  earned  in  disposing  thereof,  the  decis- 
ion of  this  court  in  Farnstvorth  vs.  Ilemmer,  1  Allen  (Mass.)  494, 
would  be  exclusive  against  the  claim,  upon  the  ground  that  the 
plaintiffs,  if  such  facts  should  be  proved,  had  entered  into  a  relation 
inconsistent  with  the  confidence  reposed  in  them  by  such  owner. 


Chap.  II]  lUoE  vs.  Wood.  18 

and  placed  themselves  in  a  position  antagonistic  to  his  interests. 
This  case  presents,  however,  the  question  whether,  conceding  that 
the  plaintiffs  conld  not  recover  their  commissions  from  the  owner 
of  the  real  estate,  they  may  not  recover  those  they  claim  to  be 
entitled  to  from  the  defendant,  as  he  knew  fully,  at  the  time  of 
entering  into  his  contract,  the  relation  in  which  the  plaintiffs  stood 
to  the  third  party.  It  was  the  duty  of  the  plaintills  to  get  the 
highest  price  for  the  real  estate  that  could  be  obtained  for  it  in  the 
market;  while  the  contract  between  the  plaintiffs  and  the  defend- 
ant was  an  inducement  to  the  plaintiffs  to  effect  a  sale  to  the 
defendant,  even  if  it  was  on  lower  terms  than  might  have  been 
obtained  from  others,  because  they  thereby  secured  their  commis- 
sions from  both  parties.  It  was  therefore  an  agreement  which 
placed  the  plaintiffs  under  the  temptation  to  deal  unjustly  with  the 
owner  of  the  real  estate.  Walker  vs.  Osgood,  98  Mass.  348.  Con- 
tracts which  are  opposed  to  open,  upright  and  fair  dealing  are 
opposed  to  public  policy.  A  contract  by  which  one  is  placed  under 
a  direct  inducement  to  violate  the  confidence  reposed  in  him  by 
another  is  of  this  character.  If  the  plaintiffs  were  guilty  of  injus- 
tice to  the  owner  of  the  real  estate,  by  placing  themselves  under 
an  inducement  to  part  with  it  at  less  than  its  full  market  value, 
they  should  not  be  allowed  to  collect  the  promised  commissions  on 
the  sale  of  the  stock,  which  was  the  consideration  for  which  they 
put  themselves  in  such  a  position.  No  one  can  be  permitted  to 
found  rights  upon  his  own  wrong,  even  against  another  also  in 
the  wrong.  A  promise  made  to  one  in  consideration  of  doing  an 
unlawful  act,  as  to  commit  an  assault  or  to  practice  a  fraud  upon 
a  third  person,  is  void  in  law;  and  the  law  will  not  only  avoid  con- 
tracts the  avowed  purpose  or  express  object  of  which  is  to  do  an 
unlawful  act,  but  those  made  with  a  view  to  place,  or  the  necessary 
effect  of  which  is  to  place  a  person  under  wrong  influences,  and 
offer  him  a  temptation  which  may  injuriously  affect  the  rights  of 
third  persona.  Nor  is  it  necessary  to  show  that  injury  to  third 
persons  has  actually  resulted  from  such  a  contract,  for  in  many 
cases  where  it  had  occurred  this  would  be  impossible  to  be  proved. 
The  contract  is  avoided  on  account  of  its  necessarily  injurious 
tendency.  Fuller  vs.  Dame,  18  Pick.  (Mass.)  472.  We  are  of 
opinion,  therefore,  that  the  judge  who  presided  at  the  trial  erred  in 
the  instruction  given,  and  that  the  defendant  was  entitled  to  an 
instruction  substantially  like  that  asked  for.  Nor  can  the  ruling 
be  sustained  upon  the  ground  suggested  at  the  bar,  that  the  plaint- 


14  Oases  on  Agency.  [Book  I 

ifEs  were  middle-men  only,  bringing  the  parties  together  and  doing 
nothing  further,  the  parties  themselves  making  the  contract.  In 
liu2)p  vs.  Sampson,  16  Gray  (Mass.)  398,  the  plaintiff  was  permit- 
ted to  recover,  not  for  services  rendered  to  the  defendant  as  a 
broker,  but  for  the  performance  of  a  certain  specific  act,  name]'', 
the  introduction  of  the  other  party  to  him,  the  parties  after  sucli 
introduction  making  their  own  contract.'  It  was  there  held  that 
this  was  not  such  a  fraud  upon  the  other  party,  who  also  paid  fer 
the  service  of  the  plaintiff  in  introducing  him,  although  conceale^l 
from  such  party,  as  to  make  the  contract  of  the  plaintiff  with 
the  defendant  void  for  illegality.  That,  however,  is  not  the  pres- 
ent case. 

It  here  appears,  by  the  bill  of  exceptions,  not  only  that  there 
was  evidence  that  the  plaintiffs  introduced  the  parties,  but  that, 
through  the  instrumentality  of  the  plaintiffs,  the  exchange  was 
effected,  and  that  in  effecting  such  exchange  the  plaintiffs  acted  as 
brokers  for  both  parties.  It  is  to  be  observed  also,  that  both  the 
instructions  asked  for  by  the  defendant  and  those  given  by  the 
presiding  judge  proceed  upon  the  ground  that  the  plaintiffs  were 
brokers  and  not  middle-men  only. 

Exceptions  sustained. 


(75  MissouEi,  100,  42  Am.  Eep.  885.) 

ATLEE  vs.  FINK. 
(Supreme  Court  of  Missouri,   October,   1881.} 

Action  on  account.  The  opinion  states  the  facta.  Defendant 
had  judgment  below. 

Tomlinson  &  Ross,  for  appellant, 

J.  D.  S.  Cooh,  for  respondent. 

Henry,  J.  Plaintiffs  sued  defendant  for  balance  on  account 
for  lumber  sold,  $497.68.  In  his  answer,  defendant  admits  the 
purchase,  but  his  defense  is,  that  there  is  in  the  account  an  over- 
charge of  835,  that  he  is  entitled  to  a  credit  of  $184.36  paid  on 
the  account  and  that  plaintiffs  owe  him  $261,  as  commission  on 
lumber  sold  by  plaintiffs  to  defendant's  employers,  on  defendant's 
recommendation,  for  which  he  alleges  plaintiffs  agreed  to  pay 

»See  Banney  v.  Donovan,  78  Mich.  818,  to  same  effect. 


Ohap.  II]  Atleb  vs.  Fink.  15 

him  a  commission  of  two  and  one-half  per  cent.  All  of  these  alle- 
gations were  denied  by  plaintiffs'  replication.  The  defendant 
obtained  a  judgment  for  $38.73,  from  which  plaintiffs  appeal. 

The  evidence  shows  that  plaintiffs  resided  at  Fort  Madison, 
Iowa,  and  were  engaged  in  manufacturing  and  selling  lumber; 
that  they  established  a  branch  of  their  business  at  Kansas  City, 
Missouri,  and  placed  J.  O'Sullivan  in  charge  of  it,  to  sell  lumber. 
O'Sullivan  testifies  that  he  was  employed  by  plaintiffs  to  sell  their 
lumber.  Samuel  Atlee,  one  of  plaintiffs,  testifies  that  O'Sullivan 
was  not  authorized  to  make  any  agreement  to  pay  commissions  to 
other  persons  for  selling  their  lumber.  The  firm  paid  O'Sullivan 
a  salary  of  $1,800  per  annum.  The  defendant,  Fink,  testifies  that 
he,  O'Sullivan  and  "W.  H.  Atlee  (who  was  not  a  member  of  the 
firm  of  plaintiffs),  were  together  when  O'Sullivan  and  defend- 
ant made  the  agreement  by  which  the  latter  was  to  receive  the 
commission  on  sales  O'Sullivan  might  make  to  defendant's 
employers  through  defendant's  influence  with  them;  that  his 
employers  paid  him  for  superintending  the  erection  of  the  various 
buildings  erected  by  them,  and  it  was  his  duty  to  keep  the  laborers 
at  work,  and  see  about  materials  and  all  details;  that  his  employers 
would  pay  no  bills  for  labor  or  lumber  until  certified  by  defendant 
to  be  correct;  that  he  never  informed  them  or  any  of  them  that  he 
was  to  get  a  commission  on  the  lumber  purchased  by  them  of 
plaintiffs.  This  is  the  substance  of  the  testimony  on  the  only 
branch  of  the  case  which  we  deem  it  necessary  to  consider. 

O'Sullivan  was  not  expressly,  or  by  the  nature  of  his  employ- 
ment, authorized  to  make  the  contract  in  question.  He  was,  as  he 
testified,  but  an  agent  to  sell,  and  could  not  delegate  that  authority 
to  another.  Especially  was  he  not  authorized  to  promise  a  com- 
pensation for  sales  made  for  the  firm  by  others,  whi«h  would  bind 
the  firm.  Story  on  Agency  (6th.  ed.),  sec.  387;  Warner  vs.  Martin, 
11  How.  (TJ.  S.)  209. 

But  it  is  unnecessary  to  extend  our  remarks  on  that  proposition, 
because  if  O'Sullivan  had  had  ample  authority  to  make  such  a  con- 
tract, it  is  contrary  to  public  policy  to  allow  the  plaintiffs  to 
recover  on  it.  Fink  was  employed  by  others  to  transact  business  for 
them,  and  they  paid  no  bills  for  lumber  not  certified  by  him  to  be 
correct,  and  for  two  and  one-half  per  cent,  commission  on  sales  to 
his  employees,  he  sold  his  influence  with  them  to  the  plaintiffs. 
He  kept  them  in  ignorance  of  the  agreement  he  had  made  with 
O'Sullivan.     That  agreement  was  a  temptation  to  him  to  certify 


16  Oases  Oif  Agency.  [Book  1 

as  correct  bills  for  lumber  which  might  be  incorrect,  both  as  to  the 
amount  of  lumber  and  the  prices  charged.  His  compensation 
could  be  increased  by  such  conduct,  and  it  is  no  answer  that  noth- 
ing of  the  kind  occurred.  In  Fuller  vs.  Dame,  18  Pick.  (Mass.) 
472,  the  court  said:  "  The  law  avoids  contracts  and  promises  made 
with  a  view  to  place  one  under  wrong  influences;  those  which  offer 
him  a  temptation  to  do  that  which  may  affect  injuriously  the  right 
and  interests  of  third  persons.^*  In  Spinks  vs.  Davis,  32  Miss.  152, 
the  court  said:  **It  is  a  sufficient  objection  to  a  contract  on  the 
ground  of  public  policy,  that  it  has  a  direct  tendency  to  induce 
fraud  and  malpractice  upon  the  rights  of  others,  or  the  violation  or 
neglect  of  high  public  duties."  One  employed  by  another  to 
transact  business  for  him  has  no  right  to  enter  into  a  contract  with 
a  third  person,  which  would  place  it  in  his  power  to  wrong  his 
principal  in  the  transaction  of  the  business  of  the  latter,  and  which 
would  tempt  a  bad  man  to  act  in  bad  faith  towards  his  employer. 
The  interests  of  the  defendant's  employers  and  those  of  plaintiffs,  aa 
buyers  and  sellers,  were  antagonistic,  and  defendant  could  not 
serve  two  masters  in  a  matter  in  which  there  was  such  a  conflict  in 
their  interests.  It  makes  no  difference  that  defendant  was 
not  employed  to  purchase  the  lumber  for  his  employers.  It  is 
enough  that  it  was  his  duty,  under  his  employment,  to  examine  and 
certify  to  the  correctness  of  the  lumber  bills. 

Under  this  view,  it  is  wholly  immaterial  whether  the  agreement 
made  by  O'Sullivan  with  the  defendant  was  ratified  or  not  by  the 
plaintiffs.  The  ratification  of  the  contract  would  not  have  elimi- 
nated the  element  which  rendered  it  invalid.  The  trial  court 
entertained  a  different  view  of  the  subject,  and  embodied,  in 
instructions  given,  that  erroneous  view,  and  refused  instructions 
asked  by  plaintiffs  which  declared  the  law  as  herein  announced, 
and  its  judgment  is  therefore  reversed  and  the  cause  remanded. 

Eeversed  and  remanded. 

Note.— See  also  Smith  vs.  Sorby,  L.  R.  8  Q.  B.  Div.,  552,  28  Moak's  Eng. 
Rep.  455;  Harrington  va.  Victoria  Graving  Dock  Co.,  L.  R.  8  Q.  B.  Div., 
649.  28  Eng.  Rep.  4^ 


Ohap,  II]  Mills  vs.  Mills.  17 

(40  New  Yobk,  543,100  Am.  Dec.  635.) 

MILLS  vs.  MILLS. 

(Court  of  Appeals  of  New   York,  June,  1869.J 

Action  for  tho  specific  performance  of  a  contract  to  convey  cer- 
tain real  estate,  brought  by  William  T.  Mills  against  David  S. 
Mills.  The  court  below  dismissed  the  complaint  upon  the  ground 
that  the  contract  relied  upon  was  illegal  and  void.  Plaintiff 
appeals. 

Samuel  D.  Morri»,  for  appellant. 
Albert  Mathews,  for  respondent. 

By  the  Court,  Hunt,  C.  J.  The  question  of  the  effect  of  agree- 
ments of  this  character  has  been  recently  considered  in  this  court: 
Lyon  vs.  Mitchell,  36  N.  Y.  235,  93  Am.  Dec.  502;  see  also  the 
dissenting  opinion  of  Judge  Grover  at  page  683.  The  agree- 
ment in  question  is  founded  upon  an  undertaking  on  the  part  of 
the  plaintiff,  reciting  that  a  bill  was  pending  in  the  Senate,  which 
granted  unto  the  plaiutiii  a  certain  railroad  franchise  in  the  city 
of  Brooklyn,  and  promising  "  to  give  all  the  aid  in  his  power, 
spend  such  reasonable  time  as  may  be  necessary,  and  generally  to 
use  his  utmost  influence  and  exertions  to  procure  the  passage  into 
a  law  of  the  bill  heretofore  introduced  into  the  Senate  of  the  State 
of  New  York."'  It  was  further  agreed  that  the  said  bill  should  be  so 
amended  as  to  limit  the  grant  therein  to  the  parties  to  this  agree- 
ment; or  that  it  should  be  amended  as,  from  time  to  time,  should 
be  agreed  by  the  said  parties  and,  when  passed,  the  right  should 
be  transferred  to  David  S.  The  plaintiff  further  agreed  that  he 
would  not  "  co-operate  or  conspire  "  with  any  other  person,  or  give 
any  aid  or  countenance  to  the  introduction  into  the  legislature  by 
any  other  person  of  a  similar  proposition. 

It  is  not  suggested  that  the  plaiutifE  was  a  professional  man, 
whose  calling  it  was  to  address  legislative  committees.  It  is  not 
suggested  that  he  had  any  claim  of  right,  which  he  proposed  to 
advocate,  and  which  right  or  debt  he  proposed  to  transfer  to  the 
defendant.  He  had  simply  asked  of  the  legislature  the  privilege  or 
favor  to  be  granted  to  him  of  building  and  operating  a  railroad 
upon  certain  streets  of  the  city  of  Brooklyn.  This  privilege  laay 
5J 


18  Oases  on  Agency.  [Book  I 

be  assumed  to  bo  of  pecuniary  value.  To  procure  the  passage  of 
Buch  a  law  for  the  benefit  of  the  defendant,  he  undertook  to  use 
his  utmost  influence  and  exertions.  This  contract  is  void  as  against 
public  policy.  It  is  a  contract  leading  to  secret,  improper  and  cor- 
rupt tampering  with  legislative  action.  See  Lyon  vs.  Mitchell, 
supra,  and  cases  cited;  see,  also.  Fuller  vs.  Dame,  18  Pick.  (Mass.) 
479;  Sedgwick  vs.  Staunton,  14  N.  Y.  289;  Frost  vs.  Belmont,  6 
Allen  (Mass.),  159;  Powers  vs.  Skiyiner,  34  Vt.  281,  80  Am.  Dec. 
677.  It  is  not  necessary  to  adjudge  that  the  parties  stipulated  for 
corrupt  action,  or  that  they  intended  that  secret  and  improper 
resorts  should  be  had.  It  is  enough  that  the  contract  tends  directly 
to  those  results.  It  furnishes  a  temptation  to  the  plaintiff  to  resort 
to  corrupt  means  or  improper  devices  to  influence  legislative  action. 
It  tends  to  subject  the  legislature  to  influences  destructive  of  its 
character,  and  fatal  to  public  confidence  in  its  action.  Clippinger 
va.  Hepbaugh,  5  Watts  &  S.  (Penn.)  315,  40  Am.  Dec.  519;  Fuller 
vs.  Dame,  supra. 

The  case  was  correctly  decided,  and  the  judgment  should  be 
affirm  fid. 

Note.— See,  also,  Marshall  vs.  Railroad  Co.,  16  How.  (U.  S.)  814;  Trist 
vs.  Child,  21  WaU  (U.  S.)  441;  Weed  vs.  Black,  2  McAr.  (D.  C.)  268,  29  Am. 
Eep.  618;  McBratney  vs.  Chandler,  22  Kans,  692;  Railway  Co.  vs.  Rail- 
way Co.,  75  Wia.  224. 


(98  Indiana,  238,  49  Am.  Rep.  746.) 

ELKHART  COUNTY  LODGE  vs.  ORARY. 

(Supreme  Court  of  Indiana,  May,  188J^) 

The  owners  of  land  in  a  city  agreed  with  the  owners  of  an  adja- 
cent building  that  if  the  latter  would  offer  that  building  to  the 
government  for  a  postoffice  for  a  nominal  rent  for  ten  years,  and 
use  all  "  proper  persuasion  "  to  secure  its  acceptance,  they  would 
pay  them  a  certain  sum  annually  for  that  period,  in  case  of  the 
government's  acceptance.  The  building  was  accepted  by  the  gov- 
ernment, one  of  the  owners,  a  personal  friend  of  the  postmaster- 
general,  truthfully  representing  that  the  situation  was  suitable,  and 
notes  were  given  by  the  defendants  for  the  annual  installments  as 
agreed,  >_ 


Chap.  II]  Elkhaet  County  Lodge  vs.  Chary.       19 

The  action  was  upon  the  notes  so  given.  Defendant  had  judg- 
ment below. 

A.  D.  Wilson,  J.  H.  Baker  and  J.  A.  S,  Mitchell,  for  appellants, 
W.  L.  Sioncx,  for  appellee. 

Elliott,  C.  J.  (After  stating  the  facts) :  The  material  deduc- 
tion of  fact  from  these  subsidary  facts  is  that  the  parties  formed  a 
combination  for  the  purpose  of  securing  the  location  of  a  public 
ofiBce,  and  as  part  of  the  plan  the  appellants  undertook  that  certain 
individuals  of  their  number  should  use  their  influence  with  the 
government  officers  to  effect  the  purpose  of  the  combination,  and 
that  the  agreement  to  pay  for  such  services  was  contingent  upon 
the  success  of  the  scheme. 

It  has  long  been  established  that  a  contract  against  public 
policy  will  not  be  enforced.  This  principle  is  firmly  fixed  and  has 
often  been  applied  to  contracts.  There  can  therefore  be  no  doubt 
as  to  the  existence  of  the  rule;  the  only  question  is  as  to  its  appli- 
cability to  the  facts  of  this  case. 

Where  the  general  public  has  an  interest  in  the  location  of  an 
office,  a  railroad  station,  or  the  like,  a  contract  to  secure.its  location 
at  a  particular  place  is  held  to  be  against  public  policy  and  not 
enforceable.  There  are  very  many  cases  holding  that  an  agreement 
to  locate  a  railroad  station  at  a  designated  place  in  not  enforceable 
because  against  public  policy.  St.  Louis,  etc.,  R.  R,  Co.  vs. 
Mathers,  104  111.  257;  Williamson  vs.  Chicago,  etc.,  R.  R.  Co.,  53 
Iowa,  126,  36  Am.  Eep.  206;  vide  authorities,  n.  214.  The  principle 
upon  which  these  cases  proceed  is  that  the  public  good,  and  not 
private  interest,  should  control  in  the  location  of  railroad  depots, 
and  this  principle  certainly  applies  with  full  force  to  an  office  of  a 
purely  public  character,  such  as  a  postoffice.  We  find  in  these 
railroad  cases,  and  there  are  very  many  of  them,  a  principle  which 
supplies  a  rule  governing  such  a  case  as  the  jsresent.  It  is  true  that 
there  is  some  difference  in  the  views  of  the  courts  upon  the  question 
whether  an  agreement  for  the  location  of  a  depot  is  valid  when  it 
does  not  restrict  the  location  to  the  place  named,  and  no  other,  but 
upon  the  general  principle  there  is  entire  harmony.  In  the  present 
case  this  difference  in  the  opinions  of  the  courts  is  an  unimportant 
consideration,  for  here  the  location  is  restricted  to  one  place  and  no 
other,  for  a  period  of  ten  years,  and  the  case  therefor  falls  within 
the  holding  of  the  cases  most  favorable  to  the  appellants.  We  say 
that  the  location  is  restricted  to  one  place  for  the  reason  that  it  is 


20  Cases  on  Agency.  [Book  1 

a  matter  of  judicial  knowledge  that  but  one  postoffice  can  be  located 
in  the  city  of  Goshen.  While  the  cases  of  which  we  have  spoken 
establish  a  principle  which  rules  this  case,  there  are  others  which 
in  their  general  features  more  nearly  resemble  the  one  at  bar. 
Closely  analogous  in  principle  are  those  cases  which  hold  that  con- 
tracts which  may  tend  to  the  injury  of  the  public  service  are  void. 
Card  vs.  Hope,  2  B.  &  0.  661;  ]yells  vs.  Foster,  8  M.  &  W.  149. 
Blacl-ford  vs.  Preston,  8  T.  R.  89;  Tool  Co.  vs.  Horris,  2  Wall; 
(U.  S.)  45;  AsJiburner  vs.  Parish,  81  Penn.  St.  52. 

There  are  many  phases  of  injury  to  the  public  service,  and  we  do 
not  deem  it  necessary  to  examine  the  cases  upon  the  subject,  for 
we  think  it  quite  clear  that  a  contract  which  is  made  for  the  pur- 
pose of  securing  the  location  of  an  important  office  connected  with 
the  public  service,  for  individual  benefit,  rather  than  for  the  public 
good,  tends  to  the  injury  of  the  public  service.  The  case  made  by 
the  evidence  falls  fully  within  the  principle  that  contracts  which 
tend  to  improperly  influence  those  engaged  in  the  public  service, 
or  which  tend  to  subordinate  the  public  welfare  to  individual  gain, 
are  not  enforceable  in  any  court  of  justice.  Pollock,  Prin.  Cont.  279; 
Anson,  Cont.  175;  1  Whart.  Cont.  sees.  402  to  414,  inclusive.  A 
wholesome  rule  of  law  is  that  parties  should  not  be  permitted  to 
make  contracts  which  are  likely  to  set  private  interests  in  opposi- 
tion to  public  duty  or  to  the  public  welfare.  This  rule  is  recognized 
in  our  own  case  of  Maguire  vs.  Smock,  42  Ind.  1, 13  Am.  Eep.  353, 
where  it  was  held  that  an  agreement  to  pay  a  consideration  to  a 
property  owner  for  signing  a  petition  to  secure  the  improvement 
of  a  street  was  void,  although  there  was  no  fraud,  and  although 
the  person  to  whom  the  promise  was  made  was  really  in  favor  of 
the  improvement. 

It  is  not  necessary  that  actual  fraud  should  be  shown,  for  a  con- 
tract which  tends  to  the  injuiy  of  the  public  service  is  void, 
although  the  parties  entered  into  it  honestly  and  proceeded  under 
it  in  good  faith.  The  courts  do  not  inquire  into  the  motives  of 
the  parties  in  the  particular  case  to  ascertain  whether  they  were 
corrupt  or  not,  but  stop  when  it  is  ascertained  that  the  contract  is 
one  which  is  opposed  to  public  policy.  Nor  is  it  necessary  to  show 
that  any  evil  was  in  fact  done  by  or  through  the  contract.  The 
purpose  of  the  rule  is  to  prevent  persons  from  assuming  a  position 
where  selfish  motives  may  impel  them  to  sacrifice  the  public  good 
to  private  benefit.  An  English  author  says:  **  But  an  agree- 
ment which  has  an  apparent  tendency  that  way,  though  an  inten- 


Ohap.  II]      Elkhart  County  Lodge  vs.  Ckary.  21 

tion  to  nse  unlawful  means  be  not  admitted,  or  even  be  nominally 
disclaimed,  will  equally  be  held  void."  Pollock,  Prin.  Cont.  2SG. 
In  the  case  of  lool  Co.  vs.  Korris,  supra,  the  court  said:  **A11 
agreqments  for  pecuniary  considerations  to  control  the  business 
operations  of  the  government,  or  the  regular  administration  of 
justice,  or  the  appointment  to  public  offices,  or  the  ordinary  course 
of  legislation,  are  void  as  against  public  policy  without  reference 
to  the  question  whether  improper  means  are  contemplated  or  used 
in  their  execution.  The  law  looks  to  the  general  tendency  of  such 
agreements;  and  it  closes  the  door  to  temptation  by  refusing  them 
recognition  in  any  of  the  courts  of  the  country." 

The  case  in  hand  is  plainly  distinguishable  from  those  in  which 
a  promise  is  made  to  the  public  through  its  representatives.  Here 
the  motive  of  the  contracting  parties  was  to  secure  the  location  of 
a  public  office  to  advance  their  private  interests,  and  not  to  bcneiit 
the  public,  and  here  too  there  was  competion  between  two  locali- 
ties. The  case  therefore  is  one  in  which  there  should  have  been  no 
influence  brought  to  bear  upon  the  decision  of  the  contest  except 
that  of  the  public  good. 

The  cases  of  Peirce  vs.  Ruley,  5  Ind.  69;  Commissioners  vs. 
Perry,  5  Ohio,  56;  State  Treasit,rer  vs.  Cross,  9  Vt.  289,  31  Am. 
Dec.  626,  hold  that  a  contract  with  the  officers  of  the  State  for  the 
benefit  of  the  State  is  valid,  but  they  clearly  distinguish  between 
the  cases  where  a  promise  is  made  to  an  individual  for  his  private 
benefit,  and  those  in  which  the  promise  is  made  to  a  public  officer 
for  the  benefit  of  the  public.  This  distinction  is  made  in  the  case 
of  State  vs.  Johnson,  52  Ind.  197,  and  in  the  course  of  the  opinion 
the  following  extract  from  the  decision  in  Clippingcr  vs.  Hep- 
baugh,  5  Watts  &  S.  (Penn.)  312,  40  Am.  Dec.  519,  is  approvingly 
quoted:  "  It  matters  not  that  nothing  improper  was  done  or  was 
expected  to  be  done  by  the  plaintiff.  It  is  enough  that  such  is  the 
tendency  of  the  contract,  that  it  is  contrary  to  sound  morality  and 
public  policy,  leading  necessarily  in  the  hands  of  designing  and 
corrupt  men,  to  improper  tampering  with  members,  and  the  use  of 
an  extraneous,  secret  influence  over  an  important  branch  of  the 
government."  The  difference  between  the  two  classes  of  cases  is 
clearly  stated  in  Odineal  v.  Barry,  24  Miss.  9,  where  it  was  said: 
**  The  members  of  the  board  of  police,  as  individuals,  will  not 
receive  any  portion  of  the  money  for  wliich  the  note  was  given. 
At  the  time  of  the  contract  it  was  not  intended  or  expected  that 
they  should  receive  it.     It  was  not  a  proposition  by  the  defendants 


22  Cases  03S"  Agency.  [Book  I 

to  pay  them  so  mnch  as  individuals,  in  consideration  that  they 
would  not  change  the  site  of  the  court  house.  If  it  had  been,  it 
would  have  been  clearly  illegal,  and  could  not  have  been  enforced." 

It  is  true  that  a  contract  to  pay  for  professional  services  in  fairly 
placing  the  facts  of  a  case  before  the  ofiBcers  of  government  is 
valid.  Trist  vs.  Child,  21  Wall.  (TJ.  S.)  441;  Smith  Lead.  Cases, 
(7th  Am.  ed.)  G92;  Bryan  vs.  Reynolds,  5  Wis.  200,  68  Am.  Dec. 
65.  But  the  contract  in  this  case  is  not  for  professional  services 
but  for  personal  influence,  and  this  constitutes  an  essential  ele- 
ment, for  personal  influence  is  not  a  commodity  for  which  money 
can  be  demanded.  The  case  of  Oscanyan  vs.  Arms  Co.,  103  U. 
S.  261,  cited  by  appellants  is  directly  against  them  upon  this  point. 
In  the  course  of  the  opinion  in  that  case  it  was  said:  "But  inde- 
pendently of  the  official  relation  of  the  plaintiff  to  his  govern- 
ment, the  personal  influence  which  he  stipulated  to  exert  upon 
another  officer  of  that  government,  was  not  the  subject  of  bargain 
and  sale.  Personal  influence  to  be  exercised  over  an  officer  of 
government  in  the  procurement  of  contracts  •  *  *  is  not 
a  vendible  article  in  our  system  of  laws  and  morals,  and  the  courts 
of  the  United  States  will  not  lend  their  aid  to  the  vendor  to  collect 
the  price  of  the  article.  Numerous  adjudications  to  this  effect  are 
found  in  the  state  and  federal  courts.  This  is  true  when  the 
vendor  holds  no  official  relations  with  the  government,  though  the 
turpitude  of  the  transaction  becomes  more  glaring  when  he  is  also 
its  officer.'*  In  Irist  vs.  Child,  supra,  the  court  in  speaking  of 
professional  services  said:  "  But  such  services  are  sej)arated  by  a 
broad  line  of  demarcation  from  personal  solicitation." 

While  contracts  for  the  payment  of  fixed  fees  for  professional 
services  are  valid,  yet  when  the  fees  are  made  contingent  upon  suc- 
cess in  obtaining  the  desired  legislation,  the  contract  sought,  or  the 
officer  asked  of  the  government,  the  contract  becomes  so  tainted 
with  illegality  as  to  render  it  void.  "  High  contingent  compensa- 
tion," said  Justice  Grier,  ''must  necessarily  lead  to  the*  use  of 
improper  means  and  the  exercise  of  undue  influence,"  and  the 
decisions  give  approval  to  his  discussion  of  the  question  of  the 
legality  of  such  contracts,  and  concur  in  the  conclusion  that  all 
such  contracts  are  against  sound  public  policy.  Marshall  vs. 
Baltimore,  etc.,  R.  Co.,  16  How.  (U.  S.)  314;  Meguire  vs.  Cor- 
wine,  101  U.  S.  108;  Oscanyan  vs.  Arms  Co.,  supra,  see  opinion, 
p.  274;  Clippihger  vs.  Hepbaugh,  supra;  Wood  vs.  McCann,  6  Dana, 
(Ky.)  366;  Mills  vs.  Mills,  40  N.  Y.  543,  100  Am.  Deo.  535  {ante, 


Ohap.  II]      Elkhart  County  Lodge  vs.  Craiiy.  23 

p.  17);  Ormcrod  vs.  Dearman,  100  Penn.  St.  561,  45  Am.  Rep.  391. 

The  contract  before  us  has  two  infirmities,  one  of  an  agreement 
for  the  nee  of  personal  influence,  and  another  of  an  agreement  for 
compensation  dependent  upon  the  contingency  of  success.  That 
we  are  correct  in  saying  that  the  agreement  is  dependent  upon  a 
contingency  is  shown  by  the  fact  that  the  consideration  became 
payable  only  in  the  event  that  the  post-oflBce  was  located  and  main- 
tained in  appellants'  building. 

Doubtless  a  contract  to  assist  a  property  owner  in  fitting  np  or 
purchasing  a  building  to  be  given  to  the  government  for  public 
use  would  be  valid,  but  in  the  present  instance  this  was  not  the 
character  of  the  consideration  of  the  notes  in  suit,  although  such 
an  element  may  have  formed  part  of  the  consideration.  The  con- 
sideration of  the  notes  is  indivisible  and  the  illegal  cannot  be  sepa- 
rated from  the  legal,  and  under  the  familiar  rule  that  where  the 
consideration  is  in  part  illegal  and  there  can  be  no  separation  the 
whole  contract  is  void,  the  contract  before  us  must  be  held  invalid 
because  of  the  illegality  of  the  consideration. 

Affirmed. 

Note. — Compare  with  Beal  v.  Polhemus,  67  Mich.  180. 


(6i  iLLiiTOTS,  174,  25  Am.  Eep.  442.) 

BYRD  vs.  HUGHES. 

^Supreme  Court  of  Illinois,  Septeviber,  1876. J 

This  was  a  bill  in  equity,  brought  by  George  V.  Byrd  agaJnst 
George  R.  H.  Hughes,  to  compel  an  accounting  and  a  division  of 
certain  property,  which  the  defendant  was  alleged  to  have  obtained 
for  services  as  agent  or  attorney  of  certain  parties  who  wore  residents 
of  the  State  of  Virginia.  The  facts  as  stated  in  the  bill  sufficiently 
appear  in  the  closing  part  of  the  opinion. 

J.   W.  Beach,  for  appellant. 

Lawrence,  Campbell  <&  Lawrence,  for  appellee. 

Ceaiq,  J.  (After  stating  the  facts.)  The  transaction,  when  prop- 
erly analyzed,  is  this:  The  complainant  was  the  agent  and  con- 
fidential advisor  of  Turner  and  Washington,  who  resided  in  Vir- 
ginia, and  had  large  real  estate  interests  in  Chicago.  They  had  in 
their  service  a  distinguished  lawyer  in  Chicago,  to  attend  to  such 


24  Cases  on  Agency.  [  Book  I 

legal  business  as  wonld  necessarily  grow  out  of  the  money  they  had 
invested  and  were  investing  in  Cook  county. 

The  complainant,  whose  duty  it  was  to  gnard  and  protect  the 
interests  of  Turner  and  Washington,  whose  agent  he  was,  and  give 
them  honest  advice,  and  not  place  himself  in  a  position  where  there 
would  be  a  conflict  between  duty  on  the  one  hand,  and  self-interest 
on  the  other,  in  utter  disregard  of  these  well-known  and  wholesome 
principles,  entered  upon  the  task  to  induce  his  principals  to  dis- 
charge their  attorney  and  employ,  in  his  stead,  the  defendant. 
What  was  the  object?  Surely  not  to  enhance  the  interest  of  his 
principals,  because  he  concedes  that  they  had  in  their  service  an 
attorney  of  skill  and  learning.  But  the  sole  object  was,  that  he 
might  obtain  one-half  of  all  fees  that  the  attorney  might  earn  in 
the  transaction  of  his  principals'  business.  The  complainant,  as 
we  learn  from  the  bill,  at  last  succeeded  in  inducing  his  principals 
to  discharge  their  attorney  and  employ  the  defendant,  and  now, 
as  the  attorney  refuses  to  divide  the  fees  thus  earned  of  appellant's 
principals,  he  calls  upon  a  court  of  equity  to  enforce  his  illegal 
contract. 

We  are  aware  of  no  principle  of  equity  jurisprudence  which 
would  allow  a  court  of  equity  to  lend  its  aid  to  assist  the  complain- 
ant in  the  collection  of  fees  earned  under  a  contract  based,  as  this 
one  is,  upon  a  consideration  immoral  and  illegal.  A  contract  based 
upon  an  illegal  consideration  could  not  be  enforced  in  a  court  of 
law,  much  less  would  a  court  of  equity,  where  a  complainant  is 
required  to  come  into  court  with  clean  hands,  enforce  the  per- 
formance of  a  contract  founded  upon  an  illegal  consideration. 

But  even  if  the  contract  set  up  in  the  bill  rested  upon  a  valid 
consideration,  we  perceive  no  ground  upon  which  the  bill  could  be 
maintained.  Sui^pose  the  defendant  was  associated  with  the  com- 
plainant in  the  agency  and  retained  as  the  attorney  of  Washington 
and  Turner,  under  an  arrangement  that  he  would  divide  fees  with 
the  complainant — when  Washington  and  Turner  discharged  the 
complainant,  that  terminated  the  arrangement. 

The  contract  was  in  the  nature  of  a  partnership  which  might  be 
terminated  at  such  time  as  either  party  saw  proper  to  withdraw. 
It  is  true  neither  withdrew,  but  Washington  and  Turner  terminated 
the  arrangement  by  discharging  the  complainant  from  the  manage- 
ment of  the  business.  The  mere  fact  that  they  saw  proper, 
after  complainant  was  no  longer  an  agent,  to  enter  upon  a  new 
contract  with  the  defendant,  under  which  he  performed  service  and 


Chap.  II  ]  Byrd  vb.  IIuanES.  25 

earned  large  fees,  can  be  no  ground  for  allowing  the  complainant 
to  come  in  and  eharo  with  him. 

It  is  not  claimed,  in  the  bill,  that  fees  were  earned  while  the 
complainant  was  acting  in  connection  with  the  defendant,  and 
have  not  been  accounted  for,  but  the  complaint  is,  fees  were  earned 
long  after  complainant  had  been  discharged  from  the  business, 
under  a  written  contract  the  defendant  made,  to  which  the  com- 
plainant was  an  utter  stranger. 

We  perceive  no  ground  upon  which  the  bill  can  be  sustained. 

Note. — See  also  Meguire  vs.  Corioine,  101  U.  S.  108;  West  vs.  Camden, 
135  U.  S.  507;  Noel  vs.  Dralce,  28  Kane.  2G5,  42  Am.  Rt-p.  162;  Holcoml  vs. 
Weaver,  186  Mass.  2G5;  Bollman  vs.  Loornis,  41  Ck>im.  581. 


26  Oases  o:s(  AGE:^7CT.  [Book  I 


CHAPTER    III. 

WnO  MAY  BE  PRINCIPAL  OR  AGENT;  AND  HEREIN  OF  JOINT 
PRINCIPAL  AND  AGENT. 


I. 

WHO    MAT    BE   PRINCIPAL. 


(4  Florida  192,  54  Am.  Dec.  340.) 

ST.  ANDREWS  BAY   LAND    COMPANY   vs.    MITCHELL. 

(Supreme  Court  of  Florida,  January,  1851. J 

Action  of  covenant  npon  an  agreement  under  seal  entered  into 
between  plaintiff  and  defendant.  Plaintiff  executed  the  agreement 
through  a  committee. 

Keyes,  for  plaintiff. 

To7ige  and  Woodward,  for  defendant. 

Thompson,  J.  (After  disposing  of  other  questions.)  The 
remaining  point  to  be  considered  is  that  which  alleges  a  want  of 
power  by  the  charter  of  the  company  to  contract  by  a  committee. 
All  aggregate  corporations  from  necessity  must  act  and  contract 
through  and  by  means  of  agents,  but  we  have  never  thought  it  of 
any  importance  by  what  name  or  description  the  agents  were 
known  and  designated.  The  agent  or  agents  employed  may  be 
called,  president,  director,  trustee,  cashier  or  secretary,  or  even  a 
committee,  without  altering  substantially  their  character  as  agents. 
Where  the  charter  or  act  of  incorporation  prescribes  the  mode  in 
which  the  officers  or  agents  of  a  corporation  must  act,  to  render 
their  acts  or  contracts  obligatory  on  the  corporation,  that  mode 
must  be  strictly  pursued;  but  we  do  not  understand  from  the  char- 
ter of  this  company  that  there  is  any  particular  mode  prescribed 
by  which  it  is  to  contract  within  the  limits  of  its  authority.  Nor 
is  there  any  particular  officer  designated  whose  sanction  or  signa- 
ture is  necessary  to  give  validity  to  the  act.  In  TJie  Bank  of  the 
Metropolis  vs.  Quttschlick,  14  Pet.  (U.  S.)  27,  the  agreement  had 


Chap.  Ill  ]  Land  Company  vs.  Mitchell.  27 

been  made  by  the  president  and  cashier  of  the  bank,  and  the 
objection  was  that  the  act  waa  not  within  the  competency  of  those 
ofiQcers  as  such.  The  court  says  *'it  was  questionably  in  the  power 
of  the  bank  to  give  authority  to  its  own  officers  to  do  so.**  From 
the  charter  of  this  company,  we  do  not  see  any  objection  to  the 
the  authorization  of  a  committee  to  make  the  agreement  in  ques- 
tion for  it.        •        ••••••••• 

Note— In  Washburn  vs.  Nashville,  etc.,  R.  R.  Co.  8  Head.  (Tenn.)  638. 
75  Am,  Dec.  784,  it  said:  *'  The  corporation  of  necessity  acta  through 
the  instrumentality  of  its  ofEcers  and  agents.  If  not  prohibited  by  the 
charter,  it  may  delegate  its  authority  to  its  oflacers  and  agents,  so  far 
as  may  be  necessary  to  effect  the  purposes  of  its  creation.  It  must  act 
in  this  mode  or  not  at  all."  See,  also,  Protection  Life  Ins.  Co.  vs.  Foote, 
79  111.  3G1;  Hurlbut  vs.  Marshall,  62  Wis.  590;  Lyman  vs.  Bridge  Cc^  2 
Aik.  (Vt.)  255.    16  Am.  Dec.  705. 


(2  Stewart,  280.) 

LUCAS  vs.  BANK  OF  DARIEN. 

^Supreme  Court  of  Alabama,  January,  ISSO.J 

Action  in  equity  for  relief  against  judgment  at  law,  upon  two, 
among  other  grounds;  that  judgments  were  obtained  upon  notes 
executed  without  complainant's  authority,  and  that  in  some  of  the 
suits  service  had  been  accepted  for  complainant  without  his 
authority  by  an  alleged  agent.  Complainant  Walter  Lucas  had 
been  in  partnership  with  John  Lucas  under  the  firm  name  of 
J.  &  W.  Lucas,  and  John  Lucas  had,  by  instrument  under  seal, 
authorized  one  Fort  to  make  and  indorse  negotiable  paper  for  the 
firm,  and  had  also  authorized  one  Kenan,  in  the  same  way,  to 
accept  service  for  the  firm  in  certain  actions.  Court  below  dia- 
missed  the  bill. 

Ooldthw  ite  and  Thorington,  for  appellant. 

Bugbee,  Rockwell  and  Gordon,  for  appellees. 

Saffold,  J.  (After  stating  the  facta  and  disposing  of  other 
questions.)  That  the  ordinary  and  legitimate  splicre  of  mercantile 
transactions  is  limited  to  simple  contracts,  and  that  the  general 
power  delegated  by  one  member  of  a  firm  to  another,  by  forming  a 
mercantile  connection,  is  equally  limited,  are  propositions  to  which 


'^8  Cases  on  Agexcy.  [Book  I 

I  readily  assent.  Tlie  consequence  of  which  is  that  one  partner 
cannot  directly  bind  another  by  deed,  nor  can  he  constitute  an 
agent  or  attorney  with  sufficient  authority  to  bind  the  partner  in 
any  obligation  in  the  nature  of  a  specialty,  unless  the  other  has 
given  special  authorit}^  or,  being  present,  consents  by  parol  or 
otherwise,  except  that  he  may  make  any  fair  disposition  of  the 
partnership  effects,  or  release  a  debt  to  the  firm  under  seal,  and 
make  it  operate  against  the  whole.  2  Gaines'  Rep.  254-5,  note  A 
and  cases  there  cited;  also  1  H.  &  M.  423;  19  Johns.  Eep.  513;  3 
Kents'  Com.  24. 

In  this  case,  however,  it  is  not  contended  that  the  complainant 
has  been  subjected  to  any  immediate  obligation  by  deed  or  bond, 
either  by  J.  Lucas,  the  partner,  or  by  either  of  the  attorneys 
appointed  by  him.  But  it  is  said  that  the  principles  of  the  objec- 
tion equally  restrained  J.  Lucas  from  delegating  by  power,  under 
seal,  the  authority  to  Foot  or  Kenan  to  sign  or  indorse  the  notes  or 
accept  the  service  of  writs,  or  do  any  other  act;  that  even  an  act 
which  would  be  valid  against  the  firm  without  a  seal,  if  done  by 
the  partner,  or  by  agent  under  a  parol  appointment,  would  be  void 
if  executed  by  specialty.  On  this  point,  I  think  a  nice  discrimina- 
tion is  required.  I  take  the  distinction  to  be  this:  that  if  the  bond 
or  deed  constitutes  the  contract,  it  must  be  made  the  evidence  of 
it,  and  determines  the  remedy;  then  this  principle  applies,  because 
the  legal  effect  of  the  contract,  the  power  of  the  remedy,  and  the 
rules  of  evidence  are  essentially  different,  the  security  being  of 
higher  dignity.  3  Kent's  Com.  24.  Here  the  objection  relative  to 
the  sealed  instruments  is,  that  agents  acted  by  virtue  of  powers 
created  under  seal  by  one  of  the  partners.  The  only  material 
question  is,  did  those  agents  act  with  this  consent,  or  by  the  author- 
ity of  the  firm.  If  one  partner  had  power  to  constitute  an  agent 
in  any  form  to  do  these  acts,  what  injury  can  result,  or  how  can  it 
be  material  that  the  authority  was  given  with  unnecessary  solemnity? 
The  acts  done  by  the  agents  are  in  the  same  form,  and  have  but  the 
same  legal  effect,  as  if  the  authority  had  been  given  in  any 
other  way.  It  is  usual  and  necessary  that  partners  in  merchandise 
should  have  agents  or  clerks,  with  authority  to  represent  them 
generally.  The  act  of  signing  notes  and  giving  indorsements  in 
the  partnership  transactions,  is  a  power  falling  within  the  usual  scope 
of  mercantile  dealings;  each  partner  can  buy  and  sell  partnership 
effects,  and  make  contracts  in  reference  to  the  business  of  the  firm, 
and  pay  and  receive,  and  draw  and  indorse  and  accept  bills  and 


Chap.  Ill]  Lucas  vs.  Ba>jk  ov  Barlkn.  29 

notes.  Gar  aril  v.  Basse,  1  Dallas  R.  119;  3  Kent's  Com.  17,  and 
references  there  given.  Hence,  I  am  of  opinion,  that  the  appoint- 
ment of  Foot,  and  his  acts,  as  attorney,  in  signing  and  indorsing 
the  notes  are  valid,  and  tantamount  to  an  appointment  by  both 
members  of  the  firm;  and  that  bo  much  of  the  jjower  as  gave  it 
the  character  of  a  deed  was  unnecessary  and  irregular  and  ought  to 
be  treated  as  surplusage  which  does  not  vitiate.  The  authority  to 
Kenan  in  like  manner  to  accept  service  of  the  writs  is  more  question- 
able. (The  condition  of  the  case  rendered  a  decision  upon  this 
point  unnecessary.) 

Affirmed. 

Note. — In  tlie  same  case.  Collier,  J.,  said:  "The  right  of  one  partner  to 
appoint  an  agent  to  conduct  the  business  of  the  concern,  results  unquestion- 
ably from  the  genuine  authority  of  partners.  Tillier  vs.  Whitehead,  1  DaU. 
269.  And  the  acts  of  such  agent,  within  the  scope  of  the  power  given,  will 
be  as  obligatory  on  the  firm  as  if  done  by  him  who  gave  the  authority."  See, 
also,  Beckham  vs.  Drake,  9  M.  &  W.  79;  Banner  Tuhucco  Co.  vs.  Jenison, 
48  Mich.  459;  Harvey  vs.  McAdams,  32  Mich.  472;  Whcatley  vs.  Tutt,  4  Ka-u. 
2-10;  Charles  va.  Eshleman,  5  Colo.  107;  Frjje  vs.  Saunders,  21  Kan.  26,  30 
Am.  Rep.  431;  Coons  vs,  Eenick,  11  Tex.  134,  60  Am.  Dec.  230;  Carley  vs. 
Jenkins,  40  Vt.  721;  Durgin  vs.  Somers,  117  Mass.  55;  Burgan  vs.  Lyell,  3 
Mich.  103. 


(8  Indiana,  195,  65  Am.  Deo.  756.) 

TRUEBLOOD  vs.  TRUEBLOOD. 

fSupreme  Court  of  Judicature  of  Indiana,  November,  1856.J 

Pekkins,  J.  Bill  in  chancery  under  the  old  practice  to  compel 
a  specific  performance,  and  to  set  aside  a  fraudulent  deed.  Bill 
dismissed.  The  facts  of  the  case,  so  far  as  material  to  its  decis- 
ion, are  as  follows: 

In  1845  William  Traeblood  was  an  infant,  and  owner  of  a  piece 
of  land.  At  that  date  Richard  J.  Trucblood,  the  father  of  said 
William,  executed  a  title-bond  to  one  Nathan  Trneblood,  whereby 
he  obligated  himself  to  cause  to  be  conveyed  to  him,  said  Nathan, 
the  piece  of  land  belonging  to  William,  after  the  latter  should 
become  of  age.  The  conveyance  was  to  be  upon  a  stated  consid- 
eration. The  bond  is  single,  simply  the  bond  of  Richard,  and 
William  is  nowhere  mentioned  in  it  as  a  party,  but  his  name  is 
signed  with  his  father's  at  the  close  of  the  condition,  as  may  be 


80  Cases  on  Agency.  [Book  I 

supposed,  in  signification  of  his  assent  to  the  execntion  of  the 
instrument  by  his  father.  We  shall  so  treat  his  signature  to  the 
bond. 

After  William  became  of  age,  it  is  claimed  that  he  ratified  the  bond, 
and  afterwards  sold  and  conveyed  the  land  to  another,  Robert  Lock- 
ridge,  who  had  notice,  etc.  This  bill  was  filed  in  order  to  have 
the  deed  to  Lockridge  set  aside,  and  a  conveyance  decreed  to 
Nathan  Trueblood,  pursuant  to  the  terms  of  the  bond. 

The  court  below,  as  we  have  stated,  refused  to  enter  such  a  decree, 
and  held,  as  counsel  inform  us,  that  the  bond  was  not  susceptible 
of  ratification  by  William  Trueblood;  and  whether  it  was  or  not 
is  the  important  question  in  the  case;  for  if  the  bond  was  not  sus- 
ceptible of  such  ratification,  we  need  not  inquire  into  the  alleged 
facts  which  it  is  claimed  evidence  that  such  an  act  had  been  done. 
As  we  have  seen,  the  bond  is  not  in  terms  the  bond  of  William  True- 
blood. He  could  not,  by  virtue  of  its  express  provisions,  be  sued 
upon  it.  Where  a  father  signs  his  name  to  articles  of  apprentice- 
ship of  his  son,  simply  to  signify  his  assent  to  them,  he  cannot  be 
a  party  to  a  suit  upon  the  articles;  Brock  vs.  Parker,  5  Ind.  538. 

If  the  bond,  then,  can  in  any  light  be  regarded  as  the  contract 
of  William  Trueblood,  it  must  be  because  his  father  may  be  con- 
sidered his  agent  in  executing  it.  Can,  then,  an  infant,  after 
arriving  at  age,  ratify  the  act  of  his  agent,  performed  while  he  was 
an  infant?  This  depends  upon  whether  his  appointment  of  an 
agent  is  a  void  or  voidable  act.  If  the  former,  it  cannot  be  ratified; 
State  vs.  State  Bank,  5  Ind.  353;  if  the  latter,  it  can  be;  Eeeve's 
Dom.  Eel.  240. 

In  the  first  volume  of  American  Leading  Cases  (3d  ed.),  248, 
ei  seq.,  the  doctrine  is  laid  down,  as  the  result  of  the  American 
cases  on  the  subject,  that  the  only  act  an  infant  is  incapable  of 
performing  as  to  contracts  is  the  appointment  of  an  agent  or 
attorney.  Whether  the  doctrine  is  founded  in  solid  reasons,  they 
admit,  may  be  doubted;  but  assert  that  there  is  no  doubt  but  that 
it  is  law.     See  the  cases  there  collected. 

The  law  seems  to  be  held  the  same  in  England.  In  Doe  vs. 
Roberts,  16  Mee.  &  W.  778,  a  case  slightly  like  the  present  in  some 
respects,  the  attorney  in  argument  said:  "  Ilere  a  tenancy  has 
been  created,  either  by  the  children,  or  by  Hugh  Thomas  acting  as 
their  agent."  Parke  B.,  replied:  "That  is  the  fallacy  of  your 
argument.  An  agreement  by  an  agent  cannot  bind  an  infant.  If 
an  infant  appoints  a  person  to  make  a  lease,  it  does  not  bind  the 


Chap.  Ill]  Tbueblood  vs.  TiiUEBLOOD.  31 

infant,  neither  does  his  ratification  bind  him.  There  is  no  doubt 
about  the  law;  the  lease  of  an  infant,  to  be  good,  must  be  his  own 
personal  act."  So  here,  had  the  bond  been  the  personal  act  of  the 
infant,  he  could  have  ratified  it.  It  would  have  been  simply 
voidable.  But  the  bond  of  his  agent,  or  one  having  assumed  to 
act  as  such,  is  void,  and  not  capable  of  being  ratified.  See 
Hiestand  vs.  Euns,  8  Blackf.  34:5. 
The  decree  below  must  therefore  be  aflBrmed  with  costs. 

NOTB.— See  further  as  to  the  capacity >f  an  infant  to  appoint  an  agent: 
Armitage  vs.  Widoe,  36  Mich.  124;  Fonda  vs.  Van  Home,  15 
Wend.  (N.  Y.)  C31,  30  Am.  Dec.  77;  Thompson  vs.  Lyon,  20  Mo.  155,  61 
Am.  Dec.  699;  Knox  vs.  Flack,  22  Penn.  St.  337;  Laiorence  vs.  McArter, 
10  Ohio  37;  Philpot  vs.  Bingham,  55  Ala.  435;  JDoe  vs.  lioberts,  16  M.  &  W. 
778;  Whitney  vs.  Dutch,  14  Mass.  457,  7  Am.  Dec.  229;  Hamer  vs.  Dipple, 
81  Ohio  St.  72,  27  Am.  Rep.  496;  Fairbanks  vs.  Snow,  145  Mass.  153,  1  Am.' 
St  £ep.  446. 


(18  Wisconsin,  35,  86  Am.  Deo.  743.) 

WEISBROD  vs.  RAILWAY  COMPANY. 

("Supreme  Court  of  Wisconsin,  January,  I864.J 

Action  of  Ejectment.  Plaintiff,  in  making  out  his  chain  of 
title  offered  in  evidence  the  record  of  a  power  of  attorney  from 
Arabella  Crary  to  Leonard  P.  Crary,  dated  June  11,  1853;  and 
admitted  that  the  said  Leonard  was  the  husband  of  the  said  Ara- 
bella at  the  date  of  its  execution.  He  also  offered  the  record  of 
a  warranty  deed  from  Arabella  Crary  and  Leonard  Crary  to  him- 
self, executed  in  June,  1854,  by  said  Leonard  as  attorney  in  fact 
for  said  Arabella,  and  for  himself.  This  evidence  was  excluded, 
on  the  ground  that  a  wife  could  not  at  that  time  execute  a 
valid  power  of  attorney  to  their  husband,  nor  execute  a  deed  by 
her  husband  as  her  attorney.  Verdict  for  defendant  Plaintiff 
appealed. 

Whittemore  &  Weisbrod,  for  appellant 
M.  A.  Edmonds,  for  respondent. 

By  the  Court,  Dixon,  C.  J.:  A  feme  covert  may  at  the  com- 
mon law  be  an  attorney  of  another  to  make  livery  to  her  husband 


32  Oases  ois  Agency.  [Book  I 

upon  a  feoffment,  and  a  husband  may  make  snch  livery  to  his  wife. 
She  may  act  as  the  agent  or  attorney  of  her  husband,  and  as  such, 
with  his  consent,  bind  him  by  her  contract  or  other  act;  or  she 
may  act  as  the  agent  of  another  in  a  contract  with  her  own  hus- 
band:    Story  on  Agency,  sec.  7.     If  it  is  no  viohation  of  the  com- 
mon law  principle  of  the  unity  of  husband  and  wife  for  the  wife  to 
act  as  the  agent  or  attorney  of  her  husband,  the  conclusion  would 
seem  irresistibly  to  follow  that  it  is  no  infringement  of  the  same  prin- 
ciple to  allow  the  husband  to  act  as  the  agent  of  the  wife  in  cases 
where,  by  the  law,  she  is  sui  juris,  and  capable  of  acting  for  herself. 
At  common  law  the  separate  existence  of  the  wife  was,  for  many  pur- 
poses merged  in  that  of  the  husband,  and  she  could  do  no  act.  Inca- 
pable of  acting  for  herself,  she  could  not  appoint  another  to  act  in 
her  stead.     Her  disability  was  general,  and  hence  we  find  no  cases  in 
the  books  of  agency  in  her  behalf,  either  by  her  husband   or 
another;  certainly  none  by  her  husband,  unless  they  be  some  of 
very  recent  date,  and  which  have  arisen  since  the  enactment  of 
statutes  enlarging  the  rights  of  married  women,  and  in  which  the 
capacity  of  the  husband  to  act  as  the  agent  of  his  wife  seems  rather 
to  have  been  assumed  than  decided.     Thus  it  will  be  seen  from  the 
report  that  it  was  assumed  by  the  court  of  appeals  in  Ilavptmann 
V8.  Catlin,  30  N.  Y.  247,  that  the  husband  might  act  as  the  agent 
of  his  wife  in  transactions  respecting  her  separate  estate.     Iler 
separate  property  was  charged  in  an  action  at  law,  under  the  lien 
act,  upon  a  contract  made  by  her  husband  as  her  agent.     The 
opinion  in  the  case  was  written  by  the  same  learned  judge,  whose 
language  in  WJiite  vs.    Wager,  25  Id.  328,  is  quoted  by  counsel  for 
respondent  to  prove  that  the  husband  cannot  act  as  such  agent. 
Thus,  too,  it  was  assumed  by  this  court  in  llohby  vs.   Wisconsin 
Bank,  17  Wis.  167.     But  in  neither  case  was  the  capacity  of  the 
husband  to  act,  or  the  power  of  the  wife  to  appoint  him,  directly 
raised  or  discussed.     The  question  passed  oil  suh  silentio.     But  as 
we  have  already  said,  there  seems  on  principle  to  be  no  reason  to 
doubt  the  correctness  of  the  doctrine  thus  assumed.     The  disability 
of  the  wife  has  in  many  respects  been  removed  by  statute,  and  she 
is  now  capable  of  acting,  not  only  by  herself,  but  by  an  agent, 
with  no  express  limitation  upon  her  power  of  appointment.     If 
the   doctrine   of   unity   does  not  stand   in   the  way,  as  it  seems 
it  cannot,  then  we  see  nothing  to  prevent  her  making  her  hus- 
band  her  agent,   whenever  she  chooses  to  intrust  him  with  the 
management  of  her  affairs.     It  is  true  that  the  court  of  ar.peals 


Chap.  Ill]  Weisbrod  vs.  Railway  Co.  33 

held  in  White  vs.  Wager,  supra,  that  the  statute  does  not  enable  the 
wife  to  convey  land  to  her  husband.  It  is  also  true  that  thft 
etatute  does  not  authorize  her  to  receive  by  gift,  grant,  etc.,  from 
her  husband  any  real  or  personal  property;  and  yet  it  would  hardly 
be  contended  that  this  limitation  upon  her  power  to  receive  directly 
abrogates  the  common  law  rule  that  she  may  act  as  the  agent  of 
her  husband  in  the  sale  and  disposition  of  the  same  property  to 
others.  So  too  at  the  common  law,  she  could  not  take  by  grant  or 
gift  from  her  husband,  still  she  could  convey  to  others  as  his  agent. 
The  distinction  arises  from  the  inherent  difference  between  a  mere 
power  to  convey  and  the  conveyance  itself.  The  former  is  not 
regarded  in  the  law  as  a  contract,  whilst  the  latter  is.  llcnce  a 
person  incapable  of  contracting  may  be  the  donee  of  a  power;  and 
husband  and  wife,  for  the  purpose  of  giving  and  receiving  a  power 
3ither  to  and  from  each  other  and  third  persons,  are  to  be  con- 
sidered as  if  no  relation  of  marriage  existed  between  them.  For 
these  reasons,  we  are  of  opinion  that  the  power  of  attorney  from 
Arabella  Crary  to  her  husband  and  the  deed  from  her  to  the  plaint- 
iff, executed  by  her  husband  as  her  attorney  in  fact,  should  have 
been  received  in  evidence.     »    ♦    •     * 

Judgment  reversed. 

Note. — See  fiirther,  aa  to  the  capacity  of  a  married  woman  at  common 
law  to  act  by  agent;  Dorrance  vs.  Scott,  3  Whart.,  (Pa.)  313,  31  Am.  Dea 
509;  Caldwell  vs.  Waters,  18  Penn.  St.  79,  55  Am.  Dec.  592;  Marshall  v». 
Rutton,  8  T.  R.  545;  Lewis  vs.  Lee,  3  B.  &  C.  291;  Fairthonie  vs.  Blaquir^ 
6  M.  &  S.  73. 


(71  New  York,  199,   27  Am.  Rep.  38.) 

NASH  vs.  MITCHELL. 

(New  York  Court  of  Appeals,  November,  1887. J 

Action  on  a  check,  dated  November  9,  1872,  to  the  order  of  the 
plaintiff,  signed  "J.  H.  Mitchell,  by  C.  H.  Mitchell,  attorney/* 
indorsed  by  plaintiffs  and  dishonored.  The  check  was  given  on 
November  4,  1872,  in  exchange  for  another  of  the  same  amount, 
drawn  by  the  plaintiffs,  to  the  order  of  C.  H.  Mitchell,  and  paid  on 
the  latter  day.  The  defendant  was  the  wife  of  C.  H.  Mitchell;  she 
had  given  and  deposited  in  the  bank  on  which  the  check  was  drawn, 
3 


34  Cases  on  Agency.  [Book  I 

and  in  whicli  she  kept  an  account,  a  power  of  attorney  authorizing 
her  husband  "  to  make,  sign,  indorse  and  accept  all  checks,  notes, 
drafts  and  bills  of  exchange,  for  her  in  her  name/'  etc.  She  had  a 
house  and  ten  acres  of  land,  on  which  she  resided,  and  which  she 
carried  on  by  her  husband's  agency,  he  hiring  the  hands  and  paying 
them  with  checks  drawn  by  him  in  her  name.  She  also  had  other 
real  estate  for  which  she  received  rents,  and  for  which  she  paid  dis- 
bursements in  the  same  way.  At  the  time  the  check  in  suit  was 
drawn,  she  did  not  have  a  deposit  large  enough  to  pay  it.  Plaintiff 
had  judgment,  and  defendant  appealed. 

James  E.  Wheeler,  for  appellant. 
S.  J.  Crooks,  for  respondent. 

Allen,  J.  The  onus  was  upon  the  plaintiffs  to  show:  First, 
that  the  drawing  of  the  check  by  the  agent  was  within  the  power 
delegated  to  him  by  the  defendant;  and,  second,  that  it  was  in  a 
transaction  and  for  a  consideration  in  resi^ect  of  which  the  disabili- 
ties of  the  defendant  as  a  feme  covert  were  removed,  and  she  at 
liberty  to  contract  and  assume  liabilities  as  if  she  were  a  feme  sole. 
There  was  no  evidence  that  the  husband  of  the  defendant  had 
assumed  to  act  or  had  acted  with  the  knowledge  of  the  defendant 
without  or  beyond  the  scope  of  the  written  power  of  attorney,  so 
that  no  question  can  arise  as  to  the  extent  of  his  powers.  The 
real  and  apparent  power  being  the  same,  it  must  be  determined  by 
the  instrument  by  which  it  was  conferred.  The  attorney  was 
authorized  "  to  make,  sign,  indorse,  and  accept  all  checks,  notes, 
drafts,  and  bills  of  exchange  for"  the  defendant,  and  in  her  name, 
and  the  power  of  attorney  was  deposited  with  the  bank  in  which 
she  kept  an  account,  as  its  authority  to  accept  the  signatures  and 
indorsements  of  the  agent  in  the  name  of  the  principal  in  all 
matters  mentioned  in  the  instrument. 

All  the  acts  authorized  ex  vi  termini  necessarily  had  respect  to 
the  separate  estate  and  property  of  the  defendant,  as  to  which  she 
had  the  statutory  ability  to  contract.  She  could  not  delegate  power 
beyond  this,  or  authorize  another  to  do  that  for  her  which  she 
could  not  do  in  person.  The  power  granted  was  to  deal  with  the 
moneys  and  choses  in  action,  parts  of  the  sejmrato  estate  of  the 
defendant,  and  not  to  create  a  debt,  or  charge  the  separate  estate 
for  a  debt,  although  contracted  for  the  benefit  of  the  estate. 

The  bank  was  not  authorized  to  pay  a  check  if  the  defendant  was 


Chap.  Ill]  Nash  vs.  Mitcuell.  85 

witliont  fnnds  to  meet  it;  and  had  it  done  so,  the  separate  estate  of 
the  defendant  would  not  have  been  charged  with  its  payment.  The 
plaintiffs  were  bound  to  know:  First,  the  legal  capacity  of  the 
defendant  to  contract;  and,  second,  the  actual  authority  of  the 
agent  with  whom  they  dealt.  North  River  Bank  vi.  Aymar,  3  Ilill, 
(N.  Y.)  262.  The  agent  did  not  by  the  check  transfer,  or  assume 
to  transfer,  or  act  in  respect  to,  funds  and  moneys  on  hand,  and 
subject  to  a  draft  as  part  of  the  separate  estate  of  the  defendant. 
The  effect  of  the  transaction,  if  legitimate  and  obligatory,  was  to 
contract  a  debt  payable  in  the  future,  and  charge  the  same  upon 
the  separate  estate  of  the  defendant,  which  was  not  within  the 
terms  of  the  authority.  But  had  the  defendant  in  person  drawn 
and  delivered  the  check  to  the  plaintiffs  upon  the  same  considera- 
tion, it  could  not  have  been  charged  upon  her  separate  estate  with- 
out proof  that  the  debt  was  contracted  for  the  benefit  of  her 
estate.  In  Mc  Vey  vs.  Cantrell,  10  N.  Y.  295,  recently  decided, 
the  declaration  of  the  defendant  at  the  time  of  borrowing  the 
money,  that  she  wanted  it  to  pay  interest  due  upon  a  mortgage 
upon  her  land  was  held  sufficient  evidence  that  the  debt  was  con- 
tracted for  the  benefit  of  her  estate. 

A  married  woman  may  be  estopped  by  her  acts  and  declarations 
in  all  matters  in  respect  of  which  she  is  capable  of  acting  sui 
Juris.      Bodine  vs.  Eilleen,  53  N.  Y.  93. 

The  common  law  disabilities  of  married  women  are  bo  far 
removed  by  statute  in  this  state,  that  they  may  make  contracts  and 
create  debts  in  or  about  any  trade  or  business  carried  on  by  them, 
or  relating  to  or  for  the  benefit  of  their  separate  estate.  Upon 
contracts  thus  made  and  for  debts  thus  created,  their  separate 
estate  is  chargeable  by  law.  They  may  also  create  an  express 
charge  upon  their  estate  upon  and  for  other  contracts  and  debts, 
or  as  security  for  others;  but  it  must  be  created  in  terms  and  by 
writing.  Manhattan  B.  &  M.  Co.  vs.  Thompson,  58  N.  Y.  80; 
Corn  Ex.  Ins.  Co.  V9.  Balcock,  42  Id.  614,  1  Am.  Eep.  601. 
There  is  no  charge  upon  the  estate  of  the  defendant  created  by  the 

terms  of  the  check.  It  is  in  the  ordinary  form  of  a  draft  upon 
a  bank,  and  only  imports  the  ordinary  obligations  of  that  class  of 
commercial  instruments.  The  defendant  was  not  carrying  on  a 
trade  or  business.  The  management  of  her  landed  property,  the 
receipts  of  the  rents  and  income  and  disposing  of  them,  was  not 
a  trade  or  business  within  the  meaning  of  the  statute  enabling 
married  women  to  carry  on  a  trade  or  business.     That  statute  has 


36  Oases  on  Agency.  [Book  I 

respect  to  business  pursuits,  mechanical,  manufacturing,  or  com- 
mercial. The  care  and  superyision  of  lands  and  property  owned  by 
Bkfeme  covert  is  not  the  carrying  on  of  a  separate  trade  or  business. 
If  it  were  so,  every  married  woman  who  owns  a  house  and  garden, 
or  has  a  deposit  in  a  savings  bank,  would  be  a  tradeswoman  carry- 
ing on  a  business. 

There  is  no  evidence  that  the  check  related  to,  or  was  given  for, 
the  benefit  of  the  defendant  or  her  separate  estate,  or  in  her  busi- 
ness, or  that  the  plaintiffs  supposed  it  was  so  given.  Upon  the 
face  of  the  transaction,  it  was  given  for  money  loaned  to  the  hus- 
band. The  plaintiffs  gave  their  check,  payable  at  sight,  to  the 
order  of  the  husband,  and  received  for  it  the  check  in  suit,  payable 
several  days  in  the  future.  If  we  were  at  liberty  to  assume,  with- 
out proof,  the  principal  and  main  fact  necessary  to  maintain  the 
action,  we  could  affirm  the  judgment.  But  the  affirmative  upon 
this,  as  upon  every  material  issue,  and  as  to  every  fact  necessary  to 
be  established  was  with  the  plaintiff.  The  referee  has  not  found 
this  fact,  and  could  not  have  found  it  upon  the  evidence.  The 
plaintiffs,  suing  a  married  woman,  were  bound  to  prove  every  fact; 
not  only  the  contract,  and  that  it  was  made  by  her  or  by  her  author- 
ized agent,  but  that  it  was  a  contract  she  was  capable  of  making. 
The  law  does  not  authorize  the  presumption,  and  courts  cannot 
assume,  without  evidence,  that  a  simple  contract,  without  anything 
on  its  face  to  indicate  the  fact,  was  made  for  the  benefit  of  the 
estate  of  a  married  woman.  The  disabilities  of  a  married  woman 
are  general,  and  exist  at  common  law.  The  capabilities  are  created 
by  statute,  and  are  few  in  number  and  exceptional.  It  is  for  him 
who  asserts  the  validity  of  a  contract  of  a.  feme  covert,  by  evidence  to 
bring  it  within  the  exceptions. 

The  judgment  must  be  reversed,  and  a  new  trial  granted. 

Judgment  reversed 


NOTB>-See  also  as  to  married  woman's  capaoitj,  onder  modem  statute,  to 
ao*  by  agent;  Kenton  Ins,  Co.  vs.  McClellan,  43  Mich.  664;  Knapp  vs.  Smithy 
VJ  N.  Y.  277;  Rowell  vs.  Klein,  44  Ind.  290;  McLaren  vs.  HaU^  2Q  Iowa,  297. 


Chap.  Ill]  Lyon  vs.  Kent.  87 


IL 

WHO   MAT   BE   AGEifT, 


(45  Alabama,  656.) 

LYON  vs.  KENT. 

f Supreme  Court  of  Alabama,  January,  1871. J 

In  January,  1865,  Kent,  Payne  &  Co.,  of  Richmond,  Ya.,  had  a 
quantity  of  cotton  in  Montgomery,  Ala.,  in  charge  of  their  agent, 
Browder.  They  gave  an  order  upon  Browder  to  one  Singleton,  of 
Quincy,  111.,  for  the  delivery  of  the  cotton  to  the  latter.  Singleton 
Bold  the  cotton  to  one  Gny,  who  deposited  it  in  the  warehouse  of 
Lyon  &  Co.  Kent,  Payne  &  Co.,  brought  an  action  of  detinue 
against  Lyon  &  Co.,  for  the  recovery  of  the  cotton  upon  the  ground 
that  Singleton's  sale  of  it  was  unauthorized.  The  plain  tills 
recovered  and  defendants  appealed. 

Lyon,  Jones  and  Smith,  for  appellant. 
Clarke  <&  Lyon,  contra. 

Peters,  J.  The  charge  given  by  the  court,  of  its  own  motion, 
on  the  trial  below,  and  excepted  to  by  the  defendants,  was  correct. 
The  only  negotiation  that  Singleton  had  with  the  firm  of  Kent, 
Payne  &  Co.,  touching  the  cotton,  took  place  in  January,  1865,  at 
Richmond,  Virginia.  If  there  was  a  sale  at  all,  or  any  contract 
entered  into  between  Singleton,  a  citizen  of  Illinois,  and  Kent, 
Payne  &  Co.,  citizens  of  Virginia,  by  which  any  title  or  interest  in 
the  cotton  was  attempted  to  be  passed  from  the  one  to  the  other,  it 
was  wholly  void  and  incapable  of  ratification.  No  trading  between 
these  parties  was  then  allowable,  without  a  permit  of  the  govern- 
ment. And  the  president's  pass  was  not  suflficient  for  that  purpose. 
McKee  vs.  United  States,  8  Wall,  163,  166;  The  Ouachita  Cotton, 
6  Wall,  521,  531;  Brown  vs.  TarJcinton,  3  Wall,  377,  381;  Ecnneit 
vs.  Chambers,  14  How.  38,  50.  Then,  the  order  alone  warned  all 
who  looked  upon  it,  who  knew  the  domicile  of  the  parties  to  it,  that 
it  could  not  be  evidence  of  a  legal  title.  And  it  was  not,  uncon- 
nected with  other  proof,  a  power  to  sell  or  dispose  of  the  cotton. 

Yet,  though  the  order  of  itself  was  not  evidence  of  a  sale  to 
Singleton,  or  a  power  to  sell,  it  shows  that  the  owners  of  the  cot- 


38  Cases  on  Agency.  [Book  1 

ton  had  anthorized  him  to  taTce  possession  of  it.     This  he  could 
do  as  the  agent  of  the  owners.     This  was  not  forbidden  to  him  oi 
to  them  by  law,  or  the  policy  of  the  government.     They  could 
change  the  agency  of  the  custody  of  their  cotton  from  one  person 
to  another.     And  they  could  make  any  person,  capable  of  acting 
as  an  agent,  such  agent  to  take  possession  of  their  property  for 
them,  and  keep  it  for  them.    They  could  transfer  its  custody  from 
Browder  to  Singleton  without  a  violation  of  law.     The  objection 
which  might  be  supposed  to  exist  to  such  an  agency  during  the 
wnr,  ceased  as  soon  as  the  war  was  ended;  and  its  purpose  being 
then  legal,  it  might  be  legally  consummated.     Any  one,  except  a 
lunatic,  imbecile,  or  child  of  tender  years,  may  be  an  agent  for 
another.     It  is  said  by  an  eminent  author  and  jurist,  that  "  It  is 
by  no  means  necessary  for  a  person  to  be  sui  juris,  or  capable  of 
acting  in  his  or  her  own  right,  in  order  to  qualify  himself  or  her- 
self to  act  for  others.     Thus,  for  example,  monks,  infants,  femes 
covert,  persons  attainted,  outlawed  or  excommunicated,  villains 
and  aliens,  may  be  agents  for  others.*'    Story's  Agency,  §§  6,  7,  9. 
So,  a  slave,  who  is  homo  non  civilis,  a  person  who  is  but  little 
above  a  mere  brute  in  legal  rights,  may  act  as  the  agent  of  his 
owner  or  his  hirer.     Powell  vs.  TJie  State,  27  Ala.  51;  Stanley  vs. 
Nelson,  28  Ala.  514.     It  was,  then,   certainly  not  unlawful,  or 
against  the  public  policy  of  the  nation,  for  Kent,  Payne  &  Co.  to 
keep  their  cotton,  and  keep  it  safely,  during  the  late  rebellion. 
It  is  the  undoubted  law  of  agency,  that  a  person  may  do  through 
another  what  he  could  do  himself  in  reference  to  his  own  business 
and  his  own  property;  because  the  agent  is  but  the  principal  act- 
ing in  another  name.     The  thing  done  by  the  agent  is,  in  law, 
done  by  the  principal.     This  is  axiomatic  and  fundamental.     It 
needs  no  authorities  to  support  it.     Qui  facit  per  ahum  facit  per 
se.     Broom's  Max,  marg.;   I  Pars.  Cont.,  5th  ed.,  p.  39,  et  seq.; 
Story's  Agency,  §  440.     And  to  this  it  may  be  added,  that  an 
agent  in  dealing  with  the  property  of  his  principal,  must  confine 
his  acts  to  the  limit  of  his  powers;   otherwise,  the  principal  will 
not  be  bound.     I  Pars.  cont.  41,  42,  5th  ed. ;  Powell  vs.  Henry,  27 
Ala.  612;  Boits  vs.  McCoy,  etal.,  20  Ala.  578;  Allen  vs.  Ogden,  1 
W.  C.  0.  174.     And  it  is  also  the  duty  of  one  dealing  with  an 
agent  to  know  what  his  powers  are,  and  the  extent  of  his  author- 
ity.     Van   Eppea  V8.   Smith,  21  Ala.   317;    Owings  vs.  Hull,  9 
Peters,  GO 7,  supra. 
There  was  conflict  in  the  testimony  before  the  jury  as  to  the 


Chap.  Ill  ]  Lyon  vs.  Kent.  89 

extent  and  character  of  the  agency  of  Singleton.  There  was  a 
wide  difference  between  his  statement  and  that  of  Kent,  with 
whom  he  transacted  the  business  about  the  cotton,  as  to  the  pur- 
pose and  scope  of  the  agency  intended  to  be  established.  It  is  not 
to  be  presumed  that  the  parties  intended  to  violate  the  law.  But 
whether  they  did,  or  not,  and  what  were  the  powers  intended  to 
be  conferred  upon  the  agent,  are  questions  for  the  jury.      *     ♦    • 

Judfrment  affirmed. 


(4  Devereux  &  Battle,  180.) 

COX  vs.  HOFFMAN. 

(Supreme    Court  of  North  Carolina,  December,  18S8.J 

Trover  for  a  mnle.  The  mule  was  borrowed  from  plaintiff's 
overseer  by  defendant's  wife,  and  was  bo  injured  while  in  defend- 
ant's service  that  it  died.  It  was  shown  that  defendant's  wife  had 
previously,  with  his  approval,  borrowed  horses  of  plaintiff,  and 
that  she  was  in  the  habit  of  borrowing  from  another  neighbor,  with 
her  husband's  approbation.  Defendant  was  absent  from  home 
when  the  injury  to  the  mule  occurred  and  when  he  returned  and 
was  informed  of  it,  he  told  hia  wife  "  he  was  sorry  and  that  she 
had  done  wrong." 

The  court  charged  the  jury  that  if  they  believed  that  the  mule 
went  into  the  possession  of  defendant's  wife,  and  if  she  had  his 
approval  of  that  particular  borrowing,  either  express  or  implied, 
and  if  the  mule  was  thereby  lost  to  the  plaintiff,  he  was  entitled  to 
recover.     Verdict  for  plaintiff.     Defendant  appealed. 

Heath,  for  defendant. 
Iredell,  for  plaintiff. 

Daniel,  J.  There  can  be  no  exception  to  the  charge  of  the 
judge.  A  feme  covert  may  become  an  agent  even  for  her  husband. 
Co.  Litt.  52a;  Frestwick  vs.  Marshall,  7  Bingh.  5G5;  1  Esp.  Rep. 
142;  2  Esp.  Rep.  511.  Such  appointment  as  agent  may  be  inferred 
from  acts  and  the  conduct  of  the  supposed  principal  respecting  her. 
When  the  agency  is  to  be  inferred  from  the  conduct  of  the  principal, 
that  conduct  furnishes  the  only  evidence  of  its  extent,  as  well  as  of 
its  existence;  and  in  solving  all  questions  on  this  subject,  the  general 


40  Cases  OJ>r  Agekcy.  [Book  I 

mle  is,  that  the  extent  of  the  agent's  authority  is  (as  between  his 
principal  and  third  persons)  to  be  measured  by  the  extent  of  the 
usual  employment  of  that  person.  Pickering  vs.  Busk,  15  East, 
38;  Whilehead  vs.  TucJcett,  15  East,  400;  Townsend  vs.  Inglis, 
Holt,  278;  3  Esp.  60;  4  Camp.  88;  2  Stark  Rep.  368;  Smith's  Mer. 
Law,  57. 

Secondly,  the  defendant  was  liable  for  the  injury  done  to  the  prop- 
erty of  the  plaintiff  by  the  negligence,  carelessness  or  unskillful- 
ness  of  his  servants  in  their  performance  of  his  business.  The  wife 
in  the  eye  of  the  law  is  his  servant;  and  the  husband  would  be 
equally  liable  to  third  persons  for  her  negligent  and  careless  acts  in 
doing  his  business,  as  he  would  be  for  the  acts  of  any  other  of  his 
servants.     The  judgment  must  be  affirmed. 

Judgment  affirmed. 

Note — See,  also,  as  to  capacity  of  a  married  woman  to  act  as  agent  of 
her  husband  or  a  stranger.  Butler  vs.  Price,  110  Mass.  97;  Singleton  vs. 
Mann,  3  Mo.  4G4;  McKee  vs.  Kent,  24  Miss.  131;  Whitu-orth  vs.  Hart,  22  Ala. 
843;  Louisville  Coffin  Co.  vs.  Stokes,  78  Ala.  372;  Mickclberry vs.  Harvey,  58 
Ind.  523;  Martin  vs.  Rector,  101  N.  Y.  77;  Miller  vs.  Watt,  70  Ga.  385;  Sims 
ta.  Siiiith,  99  Ind.  469;  50  Am.  Rep.  99. 


AS  TO  THE  CAPACITY  OF  A  PARTNERSHIP  TO  ACT  AS 

AGENT. 

(See  Deahin  vs.  Underwood,  post,  p. .) 


(18  Oregon,  351,  17  Am.  St.  Rep.  737.) 

KILLINGSWOETH  vs.    PORTLAND   TRUST  CO. 

CSupreme  Court  of  Oregon,  January,  1S90.J 

Lord,  J.  This  is  an  action  to  recover  damages  for  failure  of  the 
defendant  to  execute  and  deliver  to  the  plaintiff  a  conveyance  of 
certain  premises,  pursuant  to  an  agreement  to  that  effect.  The 
defendant  denies  this,  and  alleges  as  the  attorney  in  fact  of  one 
Deborah  H.  Ingersoll  in  compliance  with  said  agreement  that  it 
did  execute  and  tender  to  the  plaintiff  a  conveyance  of  said  premises, 
etc.,  and  now  brings  it  into  court  and  deposits  it  for  the  plaintiff, 
and  that  plaintiff  refuses  to  accept  the  same.  To  this  the  plaintiff 
demurred  on  the  ground  that  the  same  does  not  state  facts  sufficient 


Chap.  Ill]  KiLLiNGSWOETH  VS.  Trust  Co.  41 

to  constitute  a  cause  of  defense  to  the  cause  of  action  alleged.  The 
point  raised  by  the  demurrer  is:  Can  the  defendant,  a  corporation, 
execute  a  deed  of  conveyance  of  real  property  as  the  attorney  in 
fact  of  another?  In  this  State  the  right  to  become  incorporated  is 
Becured  by  a  general  law,  and  any  persons  may  avail  themselves  of 
it  by  complying  with  its  provisions.  Corporations  which  owe  their 
existence  to  the  common  law  must  be  governed  by  it  in  the  mode 
of  their  organization,  in  the  manner  of  exercising  their  powers  and 
in  the  use  of  the  capacities  conferred.  But  the  legislature  may 
authorize  the  creation  of  corporations  for  many  purposes  not  con- 
templated by  the  common  law  and  endue  it  with  powers  and 
capacities  to  be  exercised  in  disregard  of  its  rules,  or  which  may 
greatly  extend,  modify  or  limit  its  common  law  powers  and 
privileges. 

The  measure  of  the  legislative  power  in  this  regard  is  limited 
only  by  circumstantial  provisions.  Ordinarily,  in  the  creation  of 
corporotions,  the  common  law  incidents  and  powers  are  implied, 
unless  otherwise  provided  or  restrained  by  the  law  of  its  corporate 
existence.  But  in  determining  the  nature  and  extent  of  the 
powers  and  capacities  conferred  on  a  corporation,  and  the  mode 
of  their  exercise,  the  law  of  its  creation,  whether  a  charter  or  a 
statute,  must  be  consulted,  for  it  has  no  power  except  as  thus 
given,  either  expressly  or  as  incidental  to  the  exercise  of  the  powers 
granted. 

It  is  provided  by  our  statute  that  a  corporation  may  engage  in 
any  lawful  enterprise,  business,  pursuit  or  occupation  (Code,  sec. 
3217),  so  that,  unless  corporations  are  affected  with  some  disability, 
when  the  articles  of  incorporation  are  sufficient  for  the  purpose, 
there  is  no  lawful  occupation  or  business  in  which  it  may  not 
engage  in  this  State,  exactly  as  individuals.  By  its  articles  of 
corporation  the  defendant  corporation  is  expressly  authorized  and 
empowered  "to  act  as  the  general  or  special  agent,  or  attorney  in 
fact,  for  any  public  or  private  corporation  or  person  in  the  manage- 
ment and  control  of  real  estate  or  other  property,  its  purchase,  sale 
or  conveyance,  etc."  No  question  is  made  but  what  the  defendant, 
by  its  articles  of  incorporation,  has  conferred  upon  it  the  power  to 
do  the  act  for  which  there  is  claimed  to  be  an  alleged  failure,  but 
the  contention  is  that  a  corporation,  from  the  nature  of  the  organiza- 
tion as  an  artificial  body,  necessitated  to  act  through  agents,  is 
incapable  of  executing  a  deed  as  an  attorney  in  fact.  This  argu- 
ment is  based  on  the  assumption  that  there  are  some  things,  from 


42  Oases  on  Agekcy.  [Book  I 

the  inherent  nature  of  the  case,  that  a  corporation  is  incapahle  of 
doing,  and  seeks  its  illustrations  in  the  common  law,  as  that  a 
corporation  cannot  be  an  administrator  or  executor,  because  its 
duties  are  of  a  personal  nature  and  cannot  be  delegated,  or  to  take 
an  oath  when  so  required  by  law,  before  proceeding  to  execute 
some  duty  or  trust.  But  this  argument  overlooks  the  fact  that  a 
corporation  may  be  empowered  to  do  by  statute  what  it  was  inca- 
pable of  doing  under  its  common  law  powers,  and  when  thus 
created,  its  powers,  capacities  and  modes  of  exercising  them  depend 
upon  the  statute.  Nor  is  the  disability  in  such  cases  of  a  charac- 
ter which  cannot  be  obviated  by  statute,  for,  as  Mr.  Morrawetz 
says,  there  are  numerous  instances  in  which  corporations  have  been 
expressly  empowered  by  statutes  to  administer  estates.  Morrawetz 
on  Corporations,  sec.  357. 

The  reason  why  a  corporation  was  unable  to  perform  the  office 
of  executor  or  administrator,  as  stated  by  Blackstone,  was  that  it 
could  not  take  an  oath  for  the  due  execution  of  the  office.  1 
Blackstone's  Com.  477.  But,  to  enable  a  corporation  to  act  as 
executor  or  administrator,  the  statute  may  dispense  with  the  oath, 
or  provide  that  some  one  of  its  officers  may  take  it,  or  the  law  of 
the  State  may  not  require  any  oath  for  the  due  execution  of  the 
office,  and  in  such  case,  when  no  other  impediment  intervenes,  a  cor- 
poration may  act  as  administrator,  when  the  law  of  the  State  does  not 
require  the  administrator  to  take  an  oath.  It  was  not  so  held  in  Der^ 
inger's  Admr.  vs.  Deringer's  Admr.,  5  Houst.  (Del.)  416,  1  Am.  St. 
R.  156.  So,  too,  in  Lificoln's  Savings  Bank  vs.  Ewing,  12  Lea, 
602,  where  it  was  urged  that  a  corporation  was  incapable  of  taking 
to  itself  a  mortgage  or  trust  conveyance,  it  was  held  that  a  cor- 
poration may  take  and  hold  as  a  trustee  or  mortgagee,  and  execute  a 
trust  in  which  it  has  an  interest  within  the  scope  of  its  business, 
and  a  failure  or  inability  to  comply  with  the  provisions  of  the 
code,  by  taking  the  required  oath,  would  not  affect  the  validity 
of  the  deed  or  the  title  vested.  As  it  is  not  questioned  that  the 
business  in  which  the  defendant  is  engaged  is  a  lawful  occupation 
and  that  the  articles  of  incorporation  are  sufficient  to  confer  the 
power  on  the  defendant  to  act  as  an  attorney  in  fact  in  further- 
ance of  its  legitimate  objects,  there  is  nothing  to  prevent  it  from 
doing  the  acts  essential  to  carry  on  its  business  and  comply 
with  the  terms  of  its  agreement,  unless  it  is  incapable  of  perform- 
ing such  acts  from  some  cause  inherent  in  itself.  A  corporation, 
like  a  natural  person,  has  a  right  to  conduct  its  legitimate  business 


Cliap.  Ill]  KiLLiNGSWORTn  vs.  Tkust  Co.  43 

by  all  the  means  necessary  to  effect  snch  object.  Within  its  pre- 
scribed range  it  can  do  whatever  a  natural  person,  rmitatis  mutan- 
dis, could  do.  "Wharton  on  Agency,  sec.  57.  In  Barry  vs.  Mer- 
chants' Exchange  Co.,  1  Sandf.  Ch.  280,  it  is  said:  "Every  cor- 
poration, as  snch,  has  the  capacity  to  take  and  grant  property  and 
to  contract  obligations  the  same  as  an  individual.  *  ♦  ♦  ^^d 
every  such  corporation  has  power  to  make  all  contracts  which  are 
necessary  and  usual  in  the  course  of  the  business  it  transacts,  as 
means  to  enable  it  to  effect  such  objects,  unless  expressly  prohibited 
by  law.'^  Having  the  power  conferred  upon  it  to  act  as  an  attor- 
ney in  fact,  is  it  not  endowed  with  all  the  faculties  or  capacities 
essential  to  execute  it  and  carry  out  the  business  projects  of  its 
creation?  Why  may  not  a  corporation  act  as  an  agent  for  an  indi- 
vidual or  another  corporation?  As  the  owner  of  real  property,  it 
can,  by  its  authorized  agents,  execute  a  conveyance,  or  it  may  author- 
ize another,  by  power  of  attorney  in  writing,  to  convey  such  prop- 
erty for  it.  Why,  then,  may  it  not  act  as  the  agent  or  attorney 
in  fact  of  another  for  a  like  jiurpose,  when  it  is  so  authorized,  and 
to  thus  act  is  one  of  the  chief  powers  conferred  to  effect  the  object 
of  its  creation  and  to  carry  on  the  business  in  which  it  is  engaged? 
"Within  the  scope  of  its  corporate  powers,"  says  Mr.  Mechem, 
''unless  there  are  express  provisions  in  its  charter,  or  constating 
instruments  to  the  contrary,  a  corporation  may  act  as  agent,  either 
for  an  individual,  a  partnership,  or  another  corporation.  Many  of 
the  great  corporations  of  the  country  are  organized  for  this  express 
purpose  under  statutes  or  charters  conferring  and  defining  their 
powers  and  the  methods  of  executing  them;  but  even  in  other  cases, 
the  authority  so  to  act  might  be  implied  as  auxiliary  to  their  main 
purpose."  Mechem  on  Agency,  sec.  64.  It  is  clear,  then,  that  a 
corporation  may  act  as  the  agent  of  another,  and  if  so,  it  must  be 
endued  with  the  faculties  or  instrumentalities  to  perform  the  office 
it  is  authorized  to  undertake  and  carry  out  the  purposes  of  its  cre- 
ation. When  a  corporation  engages  in  a  legitimate  business  and  is 
authorized  by  its  incorporation  to  do  the  things  necessary  to  carry 
on  such  business,  it  is  an  express  grant  of  power  to  enable  it  to  effect 
that  object.  If  it  is  to  be  excluded  from  doing  snch  things  because, 
from  the  nature  of  its  organization,  it  cannot  act  personally,  but  only 
through  agents,  there  would  be  little  left  in  the  domain  of  business 
it  could  do.  As  was  said  by  the  court  in  Hopkins  vs.  Gallaton 
TurnpiJce  Co.,  4  Uumph.  412,  "the  common  law  rule  with  regard 
to  natural  persons,  that  an  agent,  to  bind  his  principal  by  deed,  must 


44b  Oases  on  Agency.  [Book  1 

be  empowered  by  deed  himself,  cannot  in  the  nature  of  things  be 
applied  to  corporations  aggregate,  these  being  of  mere  legal  exist- 
ence, and  their  board,  as  snch,  literally  speaking,  are  incapable  of 
ft  personal  act.  They  direct  or  assent  by  vote,  but  their  most 
immediate  mode  of  action  must  be  by  agent."  Being  a  creation  of 
the  law — an  artificial  person — it  can  only  act  by  agents  who  are  its 
limbs  or  instrumentalities  to  effect  the  purpose  for  which  it  was 
organized,  and  to  act  for  it,  their  act  being  the  act  of  the  corpora- 
tion, exactly  as  the  act  of  an  individual  is  his  act.  As  such  upon 
the  principle  of  the  objection  raised,  it  could  not  make  an  acknowl- 
edgment in  person,  but  it  may  by  its  ofl&cers,  and  in  such  cases, 
its  officer  affixing  the  seal  is  the  party  executing  the  deed  within 
the  meaning  of  the  statute  requiring  deeds  to  be  acknowledged  by 
the  grantor.  Kelly  vs.  Calhoun,  95  U.  S.  711;  Frosthurg  M.  B. 
Ass'n  vs.  Brace  et  ah,  51  Md.  508;  Am.  &  Eng.  End.  of  Law,  tits. 
''Acknowledgments,'*  *' Corporations." 

In  fact,  within  the  same  principle  of  reasoning,  it  may  be  said 
that  a  corporation  cannot  make  a  deed  of  its  own  property;  but  we 
know  it  can  and  that  the  acts  of  it  officers  in  so  doing  is  the  act 
of  the  corporation.  When  a  corporation  is  made  the  agent  of 
another  to  sell  and  convey  property,  it  acts  through  the  same  instru- 
mentalities as  when  acting  for  itself,  and  the  relation  between  it 
and  its  instrumentalities  are  as  one  being,  or  artificial  person,  in 
the  performance  of  its  engagements,  and  involves  no  delegation  of 
powers.  So  that  when  a  corporation  is  invested  with  a  power  of 
attorney  to  sell  and  convey  real  property,  the  person  conferring  the 
power  knows  that  the  corporation  cannot  act  personally  in  the 
matter,  but  that  in  performing  the  engagement  it  will  act  through 
its  agents,  who  for  that  purpose  are  its  faculties,  and  whose  acts  in 
the  discharge  of  that  duty  are  the  acts  of  the  corporation,  and  as 
such  must  be  considered  to  be  included  in  the  artificial  person  as 
instrumentalities  authorized  by  him  to  do  the  act  conferred  upon  it 
by  his  power  of  attorney.  In  this  view,  the  argument  that  the 
corporation  cannot  do  such  act  under  the  power  of  attorney  with- 
out a  delegation  of  authority  to  its  agents,  and  that  the  grantor  of 
the  power  has  given  no  such  power  of  substitution,  cannot  be  sus- 
tained. 

There  was  no  error,  and  the  judgment  must  bo  affirmed. 


Chap.  Ill  ]  Ash  vs.  Guib.  45 


III. 

OP  JOINT  PRIN0IPAL3. 


(97  Pennsylvania  State,  493,  39  Am.  Rep.  818.) 

ASH  vs.  GUIE. 

("Supreme  Court  of  Pennsylvania,  May,  1881.J 

Action  against  a  large  number  of  defendants,  who  were  members 
of  a  Masonic  lodge,  to  hold  them  liable  upon  a  certificate  of  indebt- 
edness, executed  by  the  master  and  wardens,  for  a  debt  incurred  in 
the  erection  of  a  lodge  building.     Plaintiff  had  judgment  below. 

R.  E.  Monaghnn  and  P.  F.  Smith,  for  plaintifis  in  error. 
B.  J.  MonagTian,  for  defendants  in  error. 

Trunket,  J.  One  of  the  defendants,  called  by  plaintiffs,  testi- 
fied: **The  full  title  of  our  lodge  is  Williamson  Lodge,  No.  309, 
F.  and  A.  M.  F.  and  A.  M.  means  Free  and  Accepted  Masons. 
The  purposes  of  our  lodge  are  charitable,  benevolent  and  social." 
This  is  the  evidence  as  to  the  objects  for  which  the  association  was 
formed,  and  without  proof  of  its  constitution  or  rules  respecting 
admission  of  members  and  the  management  of  its  affairs,  it  was 
held  to  be  a  common  partnership.  A  partnership  <ha3  been  defined 
to  be  a  "  combination  by  two  or  more  persons,  of  capital  or  labor  or 
skill,  for  the  purpose  of  business  for  their  common  benefit."  It 
may  be  formed,  not  only  for  every  kind  of  commercial  business, 
but  for  manufacturing,  hunting,  and  the  like,  as  well  as  for  carry- 
ing on  the  business  of  professional  men,  mechanics,  laborers,  and 
almost  all  other  employments.  It  would  seem  that  there  must  be 
a  community  of  interest  for  business  purposes.  Hence  voluntary 
associations  or  clubs,  for  social  and  charitable  purposes,  and  the 
like,  are  not  proper  partnerships,  nor  have  their  members  the 
powers  and  responsibilities  of  partners.     Pars,  on  Part.  6,  36,  42. 

A  benevolent  and  social  society  has  rarely,  if  ever,  been  consid- 
ered a  partnership.  In  Lloyd  vs.  Loaring,  6  Ves.  773,  the  point 
was  not  made,  but  Lord  Eldon  thought  the  bill  would  lie  on  the 
ground  of  joint  ownership  of  the  personal  property  in  the  members 
of  a  Masonic  lodge;  there  was  no  intimation  that  they  were  partners. 
Where  a  society  of   Odd  Fellows,  an  association  of  persons  for 


46  Cases  on  Agency.  [Book  1 

purposes  of  mutual  benevolence,  erected  a  building,  which  was 
afterwards  sold  at  sheriff's  sale  in  satisfaction  of  mechanics'  liens, 
in  distribution  of  the  proceeds  it  was  said,  that  as  respects  third 
persons,  the  members  were  partners,  and  that  lien-creditors,  who 
were  not  members,  were  entitled  to  preference  as  against  the  liens 
of  members.     BaU  vs.  Reed,  5  Eawle  (Pa.)   151,  28  Am.  Dec. 
650.     Had  the  members  been  called  joint-tenants  of  the  real  estate 
the  same  principle  in  the  distribution  would  have  applied.     In 
Flemyng  vs.  Hector,  2  M.  &  W.  172,  Lord  Abingee  stated  the 
difference    between    a   body  of   gentlemen   forming   a    club  and 
meeting  together  for  one  common  object,  and  a  partnership  where 
persons  engage  in  a  community  of  profit  and  loss,  and  each  partner 
has  the  right  of  property  for  the  whole,  and  in  any  ordinary  trans- 
actions may  bind  the  partnership  by  a  credit.     He  held  that  a  club 
and  its  committee  must  stand  on  the  ground  of  principal  and  agent 
and  that  the  authority  of  the  committee  depends  on  the  constitu- 
tion of  the  club,  which  is  to  be  found  in  its  own  rules.     After 
noting  the  rules  of  the  club  in  the  case  before  him  he  says:     *'  It 
therefore  appears  that  the  members  in  general  intended  to  provide 
a  fund  for  the  committee  to  call  upon.     I  cannot  infer  that  they 
intended  the  committee  to  deal  upon  credit,  and  unless  you  infer 
that  that  was  the  intention,  how  are  the  defendants  bound?''     A 
mutual  beneficial  society  partakes  more  of  the  character  of  a  club 
than  of  a  trading  association.     Every  partner  is  agent  for  the  part- 
nership, and  as 'concerns  himself  he  is  a  principal,  and  he  may 
bind  the  others  by  contract,  though  it  be  against  an  agreement 
between  himself  and  his  partners.     A  joint  tenant  has  not  the 
same  power,  by  virtue  of  the  relation,  to  bind  his  cotenant.     Thus 
one  of  several  co-adventurers  in  a  mine  has  not,  as  such,  any  author 
ity  to  pledge  the  credit  of  the  general  body,  for  money  borrowed  for 
the  purposes  of  the  concern.     And  the  fact  of  his  having  the  gen- 
eral management  of  the  mine  makes  no  difference,  in  the  absence 
of  evidence  from  which  an  implied  authority  for  that  purpose  can 
be  inferred.     Rickctts  vs.  Bennett,  4  M.  G.  &  S.  686. 

Here  there  is  no  evidence  to  warrant  an  inference  that  when  a 
person  joined  the  lodge  he  bound  himself  as  a  partner  in  the  busi- 
ness of  purchasing  real  estate  and  erecting  buildings,  or  as  a  part- 
ner BO  that  other  members  could  borrow  money  on  his  credit.  The 
proof  fails  to  show  that  the  officers  or  a  committee,  or  any 
number  of  the  members,  had  a  right  to  contract  debts  for  tho 
building  of  a  temple,  which  would  be  valid  against  every  member 


Chap,  III]  Ash  vs.  Guie.  47 

from  the  mere  fact  that  he  was  a  member  of  the  lodge.  But  those 
who  engaged  in  the  enterprise  are  liable  for  the  debts  they  con- 
tracted, and  all  are  included  in  such  liability  who  assented  to  the 
undertaking  or  subsequently  ratified  it.  Those  who  participated 
in  the  erection  of  the  building  by  voting  for  and  advising  it,  are 
bound  the  same  as  the  committee  who  had  it  in  charge.  And  so 
with  reference  to  borrowing  money.  A  member  who  subsequently 
approved  the  erection  or  borrowing  could  be  held  on  the  ground  of 
ratification  of  the  agent's  acts.  We  are  of  opinion  that  it  was 
error  to  rule  that  all  the  members  were  liable  as  partners  in  their 
relation  to  third  persons  in  the  same  manner  as  individuals  associ- 
ated for  the  purpose  of  carrying  on  a  trade.         *         •        ♦        • 

Judgment  reversed. 

Note — See  following  case:  That  voluntary  unincorporated  associationa, 
clubs,  societies,  committees,  and  the  hke,  are  not  partnerships  but  that 
the  liability  of  members  is  to  be  determined  by  the  law  of  principal  and 
agent,  see:  Flemyng  vs.  Hector,  2  M.  &  W.  172;  Todd  vs.  Emly,  7  M.  & 
W.  427,  8.  0.  8  M.  &  W.  505;  Caldicott  vs.  Griffiths,  8  Ex.  898;  Lafond 
va.  Deems,  81  N.  Y.  514;  Burt  vs.  Lathrop,  52  Mich.  106;  Rice  vs.  Pen- 
insidar  Chib,  52  Mich.  87;  Devoss  vs.  Gray,  22  Ohio  St.  169;  Newell  vs. 
Borden,  128  Mass.  31;  Volger  vs.  Bay,  131  Mass.  439;  Bay  vs.  Powers,  134 
Mass.  22;  Heath  vs.  Goslin,  80  Mo.  310,  50  Am.  Rep,  505;  Eichbaum  vs. 
Irons,  6  Watts  &  Serg.  (Pa.)  67,  40  Am.  Deo.  540. 


(66  OoNNEOTiouT,  103,  3  Am.  St.  Eep.  40.) 

DAVISON  vs.  HOLDEN. 

f Supreme  Court  of  Errors  of  Connecticut,  April,  1887.  J 

Action  for  goods  sold  by  the  plaintiffs  to  the  Bridgeport  Coope- 
rative Association.  Judgment  for  defendants,  and  plaintiffs 
appealed. 

0.  W.  Wheeler  and  H,  J.  Curtis,  for  appellants. 
R.  E.  DeForest  and  F.  W.  Holden,  for  appellees. 

By  the  Court,  Pardee,  J.  The  defendants  with  sundry  other 
persons  associated  themselves  under  the  name  of  the  Bridgeport 
Cooperative  Association,  an  unincorporated  trading  association. 
They  established  a  meat  market.  Their  purpose  was  to  buy  at 
wholesale,  and  retail  to  any  person  who  would  buy,  regardless  of 


4S  Cases  ois"  Agency.  [Book  I 

membersliip,  and  to  the  members  at  sucli  a  price  as  would  relieve 
them  from  paying  at  least  one  middleman's  profit.  Each  member 
contributed  something  to  the  starting  fund,  the  amount  determined 
by  himself.  No  profits  were  anticipated  beyond  payment  of  the 
expenses  of  management.  The  members  held  meetings  and 
elected  oflBcers;  these  employed  managers  to  conduct  the  business; 
these  last  bought  and  sold,  paying  the  receipts  to  the  treasurer. 
One  of  the  defendants  was  president,  the  other  treasurer.  Upon 
request  of  the  managers  the  plaintiffs  sold  merchandise  to  the 
association;  this  suit  is  for  the  price  thereof. 

It  did  not  otherwise  appear  than  from  the  above  facts  that  any 
of  the  members  of  the  association  ever  held  themselves  out  as 
partners,  or  as  being  liable  as  individuals,  for  the  obligations  of 
the  association;  or  that  the  plaintiffs  or  any  other  persons  ever 
gave  credit  to  them,  either  as  individuals  or  as  partners;  or  that  the 
members  entered  into  any  agreement  of  co-partnership  among 
themselves;  or  into  any  agreement  or  understanding  by  which  they 
or  any  of  them  should  become  personally  liable  for  the  debts  of 
the  association.  The  defendants  claimed  that  they  were  not  liable 
either  as  individuals  or  as  co-partners. 

The  determination  of  the  controversy  as  to  the  liability  of  the 
defendants  depends  not  at  all  upon  the  question  whether  they 
and  the  other  associated  individuals  were  partners  as  between  them- 
selves; nor  upon  the  question  whether  as  between  all  the  associates 
and  strangers  they  were  such;  but  upon  the  law  of  agency.  If  the 
defendants  clothed  an  agent  with  unrestricted  authority  to  buy, 
they  must  pay,  regardless  of  the  other  questions. 

Upon  the  record,  the  defendants,  with  others  undisclosed, 
associated  themselves  for  commercial  purposes,  for  their  pecuniary 
advantage.  For  convenience,  they  transacted  business  under  an 
assumed  associate  name;  sent  their  managers  and  agents  into  the 
market  with  unrestricted  authority  to  buy  goods  and  pledge  their 
credit  under  that  name;  to  buy  for  the  benefit  of  all  jointly  and  of 
each  individually.  In  the  due  execution  of  the  authority  con- 
ferred upon  them  they  contracted  the  debt  in  suit,  and  pledged  the 
joint  and  several  credit  of  the  associates.  As  a  matter  of  law,  the 
plaintiffs,  in  giving  credit  to  the  associate  name,  gave  credit  to 
the  individuals  who  upon  inquiry  should  be  found  to  stand  behind  it. 

It  is  of  no  legal  significance  that  the  defendants  did  not  intend 
to  be  individually  responsible,  or  that  they  did  not  know  or  believe 
that  as  matter  of  law  they  would  be,  or  that  they  intended  that 


Chap.  Ill]  Davison  vs.  Holder.  49 

the  goods  when  bonght  Bhonld  become  the  property  of  the  associa- 
tion. Ilav'iig  given  to  tlie  agent  nnrcstricted  autliority  to  buy, 
their  secret  intent  as  to  the  ultimate  destination  of  the  merhandise 
is  of  no  avail.  The  rule  that  he  who  instructs  his  agent  to  buy 
can  be  made  to  pay  stands  quite  independent  of  intent  or  knowl- 
edge; he  who  buys  by  an  agent  buys  by  himself,  and  the  law 
imputes  to  him  knowledge  that  he  must  pay,  and  the  corresponding 
intent  to  pay,  for  what  he  buys. 

The  statute  permits  individuals  to  unite  under  a  distinguishing 
associate  name  for  trading  purposes;  but  they  do  not  thereby 
acquire  either  corporate  powers  or  immunity  from  individual 
liability.  If  they  choose  so  to  do,  they  can  institute  a  suit  for  the 
common  benefit  in  the  assumed  name;  also  they  may  be  made 
defendants  under  the  same  name.  If  the  latter,  execution  will  go 
against  common  property  of  the  association  as  such,  and  not 
against  individual  property.  If,  disregarding  the  fact  and  form  of 
association,  the  suit  is  against  all  of  the  individuals,  execution  will 
go  against  the  individual  property  of  any.  A  suit  may  be  insti- 
tuted against  them  as  individuals  as  at  common  law,  if  the  plaiutifl 
will  take  the  risk  of  naming  all,  and  of  naming  them  correctly. 
If  he  names  only  a  part  of  those  who  should  be  named,  a  plea  in 
abatement  may  be  interposed  specifying  omitted  names;  if  no  such 
plea  is  interposed,  those  who  are  named  are  properly  sued,  and 
must  submit  to  judgment.  If  the  associated  persons  send  an  agent 
into  the  market  with  unlimited  authority  to  make  purchases  and 
contract  debts  in  the  name  and  for  the  benefit  of  the  association, 
and  the  agent  discloses  the  name  of  the  association  and  not  the 
names  of  the  individuals  composing  it,  the  creditor  may,  if  he  is 
content  to  look  only  to  the  property  of  the  association  as  such  for 
his  security,  institute  his  action  against  the  association  by  its  dis- 
tinguishing name.  If  he  desires  to  reach  the  individual  prop^ 
erty  of  members,  he  must  institute  his  suit  against  such  and 
80  many  of  them  as  he  can  name,  as  individuals;  he  may  do  this 
even  if  the  sale  was  made  and  the  credit  given  in  form  to  the 
association,  and  the  name  of  no  individual  member  was  then 
known  to  him.  He  may  do  this  for  the  reason  that  he  gave  credit 
upon  the  request  of  a  known  agent  for  an  unknown  principg].  By 
operation  of  law,  the  credit  was  to  the  principal  from  the  begin- 
ning, to  be  enforced  whenever  he  can  be  discovered.      Keversed. 

Note. — See  Hubbard  vs.  Tenbrook,  post,  p  — . 
4 


60  Cases  on  Agekcy.  [Book  I 

IV. 

OP  JOINT   AGENTS. 


(63   New   Yoke,    121.) 

HAWLEY    YS.    KEELER. 

(  New  York  Court  of  Appeals,  June,  1873.  J 

Action  to  recover  damages  for  the  alleged  breach  of  a  contract 
for  the  sale  of  a  quantity  of  cheese.  Defendants,  who  were  the 
patrons  of  a  cheese  factory,  had  appointed  a  committee  of  three 
persons,  Bogardus,  Morse  and  Keeler,  to  make  contracts  for  the 
sale  of  their  cheese  for  the  year  1868.  Bogardus  was  not  a  patron 
nor  interested  in  the  manufacture  of  the  cheese,  and  took  but  lit- 
tle part  in  the  sales.  The  others  acted  without  consulting  him 
and  made  many  sales,  the  proceeds  of  which  were  distributed 
among  the  defendants.  In  July,  the  plaintiffs  bought  a  quantity 
of  cheese  of  Morse  and  Keeler,  without  the  concurrence  or  partici- 
pation of  Bogardus.  In  November,  they  made  the  contract  in 
question  with  Morse  and  Keeler  for  the  purchase  of  a  large  quan- 
tity. Bogardus  was  not  consulted.  The  contract  not  having  been 
performed,  this  action  resulted.  Defendants  claimed  that  the  con- 
tract was  void,  upon  the  ground  that  the  three  agents  must  act 
together,  and  that  without  Bogardus' participation  defendants  could 
not  be  bound.     Verdict  for  plaintiffs,  and  defendants  appealed. 

Francis  Kernan,  for  appellants. 
M.  Goodrich,  for  respondents. 

Andeews,  J.  (after  disposing  of  other  questions).  The  remain- 
ing question  relates  to  the  validity  of  the  contract,  in  view  of  the 
fact  that  but  two  of  the  three  committeemen,  appointed  by  the 
patrons  to  make  sales,  acted  in  making  it.  It  is  well  settled,  as  a 
general  doctrine  in  the  law  of  agency,  that  when  an  authority  to 
act  in  a  matter  of  a  private  nature  is  conferred  by  the  principal 
upon  more  than  one  person,  all  must  act  in  the  execution  of  the 
power.  This  is  the  construction  which  the  law  puts  upon  the  power 
following  the  supposed  intention  of  the  parties,  and  there  must, 
ordinarily,  be  a  joint  execution  of  the  agency.     The  authority  may 


Chap.  Ill]  IIawley  vs.  Keelee.  61 

be  conferred  in  such  terms  as  to  antliorize  a  several  execution,  or 
an  execution  by  a  majority  or  other  number;  and  in  the  absence  of 
express  words  it  may  have  been  exercised  under  such  circumstances 
as  will  justify  the  inference  that  the  principal  intended  that  less 
than  the  whole  number  might  act;  in  which  case  he  would  be  bound 
to  those  who  had  acted  upon  such  inference.  The  general  rule, 
that  a  joint  execution  must  be  had  of  an  authority  given  to  several, 
has  been  made  to  yield  for  the  benefit  of  trade,  and  to  meet  sup- 
posed necessities,  in  contracts  made  by  one  of  several  joint  owners 
of  ships,  and  in  case  of  sales,  made  by  one  of  two  factors,  of  goods 
consigned  to  them  for  sale.  In  this  case  it  appeared  that  Bogar- 
dus  had  not  acted,  to  any  extent,  as  one  of  the  committeemen  dur- 
ing the  year.  There  had  been  frequent  sales  made  by  Keeler  and 
Morse  before  this  sale  without  his  advice  or  concurrence;  and  the 
money  arising  therefrom  had,  from  time  to  time  (as  may  be 
inferred  from  the  evidence),  been  distributed  among  and  received 
by  the  defendants.  The  plaintiffs,  in  July  previous,  made  a  pur- 
chase of  the  two  acting  committeemen,  without  any  participation 
of  Bogardus  in  the  transaction;  and  the  cheese  embraced  in  the 
contract  in  this  case  was  afterward,  as  the  proof  tends  to  show, 
sold  to  other  parties  without  consultation  with  him.  The  patrons 
lived  in  the  vicinity  of  the  factory.  Some  of  them,  not  on  the  com- 
mittee, were  present  at  times  when  the  question  of  the  sale  of 
cheese  was  considered.  The  question  is  not  without  difiiculty; 
but  we  are  of  opinion  that  the  jury,  in  view  of  tlie  character  of 
the  agency,  the  manner  in  which,  for  a  long  time,  the  authority 
had  been  exercised,  the  prior  dealings  with  the  plaintiffs,  the 
receipt  by  the  defendants  from  time  to  time  of  the  proceeds,  from 
sales  made  by  Keeler  and  Morse  alone,  without  dissent  or  objec- 
tion to  the  contracts  made,  might  lawfully  find  that  the  patrons 
had  knowledge  of  and  assented  to  the  execution  of  the  power  of 
sale  by  a  majority  of  the  committee.  It  cannot  be  assumed,  under 
the  circumstances,  that  the  principals  were  ignorant  of  the  conduct 
of  their  agents;  but  the  presumption  is  that  they  understood  the 
course  of  the  business  and  dealings  with  the  common  property, 
especially  as  no  evidence  was  given  on  their  part  that  they  were 
not  informed  thereof.  The  concurrence  of  Keeler  and  Morse,  two 
of  the  committeemen,  in  making  the  contract  sued  upon,  was 
sufficiently  shown,  and  the  defendants  were  bound  by  it.     *     •     • 

Affirmed. 
Note. — A  power  conferred  upon  a  number,  jointly  or  severally,  must  ba 


52  Cases  on  Agency.  [Book  I 

executed  by  all  or  one,  unless  a  contrary  intention  clearly  appears.  Guthrie 
V8.  Armstrong,  5  B.  &  Aid.  628.  See,  also,  North  Carolina  R.  R.  Co.  va. 
Swepson,  71  N.  C.  350;  Cedar  Rapids,  etc.,  R.  Co.  vs.  Stewart,  25  Iowa, 
115;  Hartford  F.  Ins.  Co.  vs.  Wilcox,  57  lU.  180. 


(62  VERMOirr,  87,  36  Am.  Rep.  734.) 

FIEST    NATIONAL    BANK    OF    NOKTH    BENNINGTON 
vs.   TOWN   OF  MOUNT  TABOR. 

(Supreme  Court  of  Vermont,   October,   1S79.J 

Action  to  recover  upon  certain  interest  conpons  which  had  been 
attached  to  bonds  purporting  to  be  issued  by  defendant  and  held 
by  plaintiff.     Plaintiff  recovered,  and  defendant  appealed. 

W.  G.  Veasey  and  W.  G.  Dunion,  for  defendant. 
B.  J.  Phelps,  for  plaintiff. 

RoTCE,  J.  *  •  *  The  plaintiff  was  a  bona  fide  holder  of 
the  conpons  sued  upon,  without  notice  of  any  defense  to  said  cou- 
pons or  the  bonds  to  which  they  were  originally  attached,  and 
which  were  also  owned  by  the  plaintiff.  To  defeat  the  plaintiff's 
right  of  recovery,  the  defendant  offered  evidence  tending  to  show 
that  the  facts  set  forth  in  the  certificate,  which  was  signed  and 
caused  to  be  recorded  by  two  of  the  three  commissioners  named  in 
the  instrument  of  assent  to  which  said  certificate  was  appended, 
were  not  true.  The  act  provides  (§  6)  that  such  certificate,  if 
duly  executed  and  recorded,  shall  be  conclusive  evidence  of  the 
facts  therein  set  forth.  See  First  National  Bank  of  St.  Johnslury 
V8.  Concord,  50  Vt.  257,  281. 

The  claim  of  defendant  is  that  the  certificate  in  this  case,  being 
signed  by  but  two  of  the  three  commissioners,  was  not  a  compliance 
with  the  act,  and  consequently  does  not  estop  the  town  from  dis- 
proving the  truth  of  the  facts  set  forth  in  it.  The  offer  was  to 
show  that  the  third  commissioner  refused  "  to  sign  such  certificate 
for  the  reason  that  such  instrument  of  assent  had  not  been  signed 
by  a  majority  of  the  resident  taxpayers  of  said  town,  as  required  by 
said  act;''  which  necessarily  implies  that  he  acted  with  his  associ- 
ates,   although   the   case  does  not  show  that  he  took  the   oath 


Chap.  Ill]        Bank  vs.  Town  op  Mt.  Taboe.  63 

required  by  section  6,  bo  far  as  to  satisfy  himself  that  the  requisite 
assent  did  not  appear  upon  the  instrument,  and  thereupon  refused 
to  concur  with  them  in  the  decision  which  they  reached  and 
embodied  in  their  certificate.  The  question  of  law  presented  for 
our  decision,  then,  is,  was  the  act  of  two  of  the  three  commissioners, 
the  third  sharing  in  their  deliberations  but  refusing  to  concur  in 
their  decision,  a  sufficient  compliance  with  the  law?  In  view  of 
the  fact  that  there  is  a  dictum  by  Wheeler,  J.,  in  Danville  vs. 
Montpelier  <£'  St.  Johnsliiry  Railroad  Co.,  43  Vt.  144, 155,  in  which 
that  learned  judge  expresses  the  opinion,  upon  common  law  prin- 
ciples, that  the  authority  conferred  upon  the  commissioners  under 
an  enabling  act  almost  precisely  similar  in  its  terms,  so  far  as  the 
duties  and  powers  of  the  commissioners  are  concerned,  to  this  one, 
was  a  joint  authority,  in  the  exercise  of  which  all  must  concur,  we 
have  deemed  it  proper  to  give  to  the  subject  a  more  extended  con- 
Bideration  than  we  should  otherwise  have  thought  necessary.  It 
Beems,  at  common  law,  that  when  an  authority  is  conferred  upon 
several  it  is  sometimes  necessary  to  its  lawful  exercise  that  all  should 
act  together  and  all  concur  in  the  result,  while  under  other  circum- 
Btances  the  decision  and  act  of  the  majority  is  good,  provided  all 
meet  and  deliberate,  or  have  notice  so  to  do;  and  in  yet  other  cases 
the  act  of  the  majority,  or  the  majority  of  the  quorum  alone,  will 
be  upheld. 

In  the  case  at  bar  it  is  only  necessary  to  deduce  from  the  author- 
ities which  of  the  two  first  named  rules  is  to  be  here  applied. 

The  distinction  is  laid  down  by  Lord  Coke,  Co.  Litt.  1815; 
**  Secondly,  there  is  a  diversitie  between  authorities  created  by  the 
partie  for  private  causes  and  authoritie  created  by  law  for  execu- 
tion of  Justice.  As  for  example,  if  a  man  devise  that  his  two  exec- 
utors shall  sell  his  land,  if  one  of  them  dye  the  survivor  shall  not 
Bell  it;  but  if  he  had  devised  his  lands  to  his  executors  to  be  sold, 
then  ihe  survivor  shall  sell  it.  *  *  *  If  a  man  make  a  letter 
of  atturney  to  two,  to  do  any  act,  if  one  of  them  dye  the  survivor 
shall  not  do  it;  but  if  a  venire  facias  be  awarded  to  foure  coroners 
to  empannell  and  returne  a  jury,  and  one  of  them  dye,  yet  the  other 
shall  execute  and  returne  the  same.  If  a  charter  of  feoffment  be 
made  and  a  letter  of  atturney  to  foure  or  three  joyntly  or 
severally  to  deliver  seisin,  two  of  them  cannot  make  liverie; 
because  it  is  neither  by  them  foure  or  three  jointly,  nor  any 
of  them  severally;  but  if  the  sl.erife  upon  a  capias  directed 
to  him  make  a  warrant   to   foure   or  three  jointly  or  severally 


54  Cases  on  Agency.  [Book  I 

to  arrest  the  defendant,  two  of  tliem  may  arrest  him,  because  it  is 
for  the  execution  of  justice,  which  is  pro  bono  publico,  and  there- 
fore shall  be  more  favourably  expounded,  than  when  it  is  only  for 
private;  and  so  hath  it  beene  adjudged — Jura  puhlica  ex  prirato 
promiscue  decidi  non  debent."  Following  and  applying  this  prin- 
ciple, the  decisions  down  through  the  English  reports,  though  not 
numerous  upon  this  point,  are  clear  that  when  an  act  is  to  be  done 
by  several  which  is  matter  of  public  concern,  all  must  meet  and 
confer,  and  the  majority  may  then  decide.  In  Billings  vs.  Prinn, 
2  Bl.  Com.  1017,  where  a  warrant  of  commitment  required  to  be 
signed  by  two  justices  and  they  acted  separately.  Lord  DeGret,  C. 
J.,  said:  *'  There  is  no  use  in  appointing  two  or  more  persons  to 
exercise  judicial  powers,  unless  they  are  to  act  together.**  This 
case  was  expressly  followed  in  King  vs.  Forrest,  3  T.  R.  38.  In 
King  vs.  Beeston,  Id.  692,  the  church-wardens  and  overseers,  with 
the  consent  of  the  major  part  of  the  parishioners,  were  authorized 
by  statute  to  contract  for  the  support  of  the  poor.  All  but  one  of 
the  church-wardens  and  overseers  acted  in  making  a  contract,  and 
he  refused  to  join.     The  act  of  the  majority  was  held  sufficient. 

Lord  Kenton,  C.  J.,  said:  *'A  contract  has  been  entered  into 
in  which  the  parish  at  large  is  concerned,  and  which  the  act  of 
Parliament  has  enabled  the  parish  officers  with  the  concurrence  of 
the  parish  to  enter  into,  and  the  question  is  whether  one  obstinate 
man,  in  opposition  to  all  the  rest  of  the  parish,  in  an  act  in  which 
they  are  more  interested  than  he  is,  shall  be  able  to  defeat  their 
purpose.  I  do  not  mean  to  say  that  the  church-wardens  and 
overseers  are  technically  a  corporation;  but  as  far  as  concerns  the 
regulation  of  the  poor  of  the  parish  they  stand  in  pari  ratione.  * 
*  ♦  This  is  very  different  from  the  case  of  trustees  in  settle- 
ments, who  are  generally  chosen  by  the  different  branches  of  the 
family,  in  which  case  it  is  necessary  that  they  should  all  concur  in 
every  act,  in  order  that  each  may  protect  the  interest  which  he 
was  appointed  to  guard." 

In  Wither  ell  vs.  Gartham,  6  T.  R.  388,  a  power  given  by  deed  to 
the  vicar  and  church-wardens  to  appoint  a  schoolmaster  was  held 
well  executed  by  the  vicar  and  a  majority  of  the  church-wardens, 
it  being  strongly  urged  by  counsel,  among  other  things,  that  the 
trust  was  one  of  a  public  nature.  Lawrence,  J.,  says:  ''In 
general,  it  would  be  the  understanding  of  a  plain  man,  that  where 
a  body  of  persons  is  to  do  an  act,  a  majority  of  that  body  would 
bind  the  rest." 


Chap.  Ill  ]        Bank  vs.  Town  of  Mt.  Taboe.  65 

In  QrindJey  vs.  Barker,  1  B.  &  P.  229,  which  is  regarded  as  a 
leading  case  upon  this  point,  a  condemnation  by  four  out  of  six 
triers  of  leather  appointed  under  a  statute,  the  whole  number  hav- 
ing met  and  deliberated,  was  sustained.  Eyre,  C.  J.,  says:  "I 
think  it  is  now  pretty  well  established  that  where  a  number  of 
persons  are  intrusted  with  powers  not  of  mere  private  confidence, 
but  in  some  respects  of  a  general  nature,  and  all  of  them  are 
regularly  assembled,  the  majority  will  conclude  the  minority,  and 
their  act  will  be  the  act  of  the  whole;*'  referring  to  the  opinion  of 
Lord  Hardwick,  in  Attorney  General  vs.  Davy,  2  Atk.  212: 
*'  When  all  have  assembled  and  communicated  to  each  other  the 
necessary  information,  it  is  fitter  the  majority  should  decide  than 
that  all  should  be  pressed  to  a  concurrence."  Buller,  J.  ''Now 
it  seems  to  me  that  upon  the  first  question  the  authority  of  Co. 
Litt.,  if  we  went  no  further,  is  decisive,  because  it  is  there  said  in 
express  terms  that  in  matters  of  public  concern  the  voice  of  the 
majority  shall  govern."  Heath,  J.  *'A11  must  concur  in  trying, 
and  then,  though  they  be  of  different  opinions,  some  of  one 
opinion,  some  of  another,  yet  all  having  tried,  the  majority  shall 
bind." 

EooKB,  J.  "  The  authority  given  to  the  triers  in  the  present 
instance  is  general  to  examine  and  try  whether  certain  goods  are 
serviceable  or  not,  and  is  committed  to  them  for  the  advancement 
of  public  justice,  and  as  a  public  trust.  Now  the  decisions  are 
numerous  (and  may  be  found  in  Viner,  title  authority,  letter  B) 
to  show  that  a  different  construction  prevails  with  respect  to  private 
authorities  and  authorities  for  the  advancement  of  public  justice. 
*  *  *  We  shall  not  advance  public  justice  by  saying  that 
though  a  majority  of  the  triers  who  have  had  the  advantage  of  ah 
the  information  to  be  derived  from  the  whole  six  who  compose  the 
tribunal,  are  of  opinion  that  the  leather  is  unserviceable,  still  any 
one  man  shall  have  it  in  his  power  to  prevent  a  finding  by  hold- 
ing out  against  the  rest. 

All  six  must  undoubtedly  try;  but  it  does  not  therefore  follow 
that  they  must  all  decide  the  same  way.  Each  man  is,  after  due 
examination  and  inquiry,  to  decide  according  to  the  best  of  his 
judgment,  and  the  question  is  to  be  determined  by  the  opinion  of 
the  majority." 

Following  these  authorities  and  others  in  our  own  country,  Chan- 
cellor Kent  lays  down  the  rule,  2  Kent  Com.  633,  to  be:  *'  And  if 
the  authority,  in  a  matter  of  mere  private  concern,  be  confided  to 


66  Cases  on  Agency.  [Book  I 

more  thnn  one  agent,  it  is  requisite  that  all  join  in  the  execntion 
of  the  power;  though  the  cases  admit  the  rule  to  be  different  in  a 
matter  of  public  trust;  and  if  all  meet  in  the  latter  case,  the  act  of 
the  majority  will  bind."  To  the  same  effect  is  Story's  Agency,  § 
42,  and  note.  The  principle  has  been  applied  in  a  large  number 
of  adjudicated  cases  in  this  country.  We  shall  only  advert  to  some 
of  the  principal  decisions. 

In  Jewett  vs.  Alton,  7  N.  H.  253,  a  case  which  in  its  facts  has  no 
special  application  here,  the  law  is  thus  stated  by  Green,  J. :  **The 
rule  is,  that  when  an  authority  is  given  by  law  to  three  or  more  per- 
sons it  may  in  general  be  executed  by  a  major  part  of  the  persons 
to  whom  it  is  delegated.  But  where  individuals  or  corporations 
give  an  authority  jointly  to  three  or  more  persons,  in  order  to  bind 
the  principal  all  the  agents  must  act.''  In  Patterson  vs.  Leavitt, 
4  Conn.  50;  10  Am.  Dec.  98,  the  court  says:  *'It  is  established 
beyond  a  question  that  an  authority  given  for  a  private  purpose, 
to  a  number  of  individuals,  is  joint,  and  must  be  strictly  pursued. 
On  the  other  hand,  if  the  power  be  of  a  public  nature,  the  majority 
may  perform  the  act  delegated;  the  power  being  considered  as 
joint  or  several."  This  was  a  case  of  a  private  arbitration,  and  an 
award  by  two  of  the  three  arbitrators,  the  third  dissenting,  was 
held  invalid. 

In  Scott  vs.  Detroit  Young  Mcn*s  Society's  Lessee,  1  Doug.  (Mich.) 
119,  it  was  held,  that:  *'As  a  general  proposition  it  is  undoubtedly 
true  that  where  several  persons  are  appointed  to  execute  a  power  or 
trust,  and  no  authority  is  given  to  a  less  number  than  the  whole  to  act, 
all  must  join  in  its  execution.  A  distinction  is  drawn,  however, 
between  a  mere  private  trust  or  power  and  a  power  of  a  public 
nature  conferred  by  law.  In  such  cases,  if  all  are  present  to  delib- 
erate, although  a  majority  only  assent  to  the  act,  it  is  unquestion- 
ably good."  In  Commissioners  of  Allegheny  Co.  vs.  Lecky,  6  S.  &  K. 
(Penn.)  166  S.  0.  9  Am.  Dec.  418,  it  was  held  that  where  the  com- 
missioners of  the  county  had  authority  under  a  statute  to  purchase 
a  site  for  a  jail,  the  power  might  be  legally  exercised  by  two  of  them 
without  the  concurrence  of  the  third;  that  "the  rule  that  requires 
all  to  join  in  the  execution  of  a  power  has  never  been  applied  to 
public  business  of  a  judicial  nature,  nor  to  public  business  of  a 
deliberative  nature  though  not  strictly  judicial."  See,  also.  Com- 
monwealth vs.  Canal  Commissioners,  9  "Watts  (Penn.)  466,  471; 
Cooper  vs.  Lampeter  Toicni<liip,  8  Id.  125;  Kingsbury  vs.  School 
District,  12  Mete.  (Mass.)  99,  105;    Charles  vs.  Uohoken,  3  Dutch 


Chap.  Ill  ]        Bank  vs.  Town  of  Mt.  Tabok.  57 

(N.  J.)  203;  Cnrtis  vs.  Butler  Co.,  24  Eow.  (U.  S.)  435,  450; 
Jones  vs.  Andover,  9  Pick.{Mass.)145, 151,  and  Cooley  vs.  O'Connor, 
12  Wall.  (U.  S.)  391.  In  Downii<g  vs.  Rugar,  21  Wend.  (N.  Y.)  il^, 
182,  8.  c.  34  Am.  Dec.  223,  one  of  two  overseers  of  the  poor  acted  in 
the  performance  of  a  merely  ministerial  act,  and  it  was  held  that  the 
assent  of  the  other  waste  be  presumed.  Cowen,  J.,  in  the  opinion, 
says:  "The  rule  seems  to  be  well  established  that  in  the  exercise  of 
public  as  well  as  private  authority,  whether  ministerial  or  judicial, 
alli\iQ  persons  to  whom  it  is  committed  must  confer  and  act  together, 
unless  there  be  a  provision  that  a  less  number  may  proceed.  Where 
the  authority  is  public  and  the  number  such  as  to  admit  of  a 
majority,  that  will  bind  the  minority  after  all  have  duly  met  and 
conferred." 

The  necessity  for  a  meeting  and  deliberation  of  all  persons 
appointed  to  perform  a  duty  calling  for  the  exercise  of  discretion, 
seems  to  be  recognized  by  all  the  cases,  unless  it  be  obviated  by  cir- 
cumstances which  do  not  exist  in  the  case  at  bar.  In  Crocker  vs. 
Crane,  21  Wend.  (N.  Y.)  211,  218,  s.  c.  34  Am.  Dec.  228,  the 
court,  Cowen,  J.,  says:  *'  It  has  long  been  perfectly  well  settled, 
that  where  a  statute  constitutes  a  board  of  commissioners  or  other 
ofiacers  to  decide  any  matter,  but  makes  no  provision  that  a  major- 
ity shall  constitute  a  quorum,  all  must  be  present  to  hear  and  con- 
sult, though  a  majority  may  then  decide."  This  was  a  case  where 
commissioners  were  named  in  the  act  of  incorporation  of  a  railroad 
company,  "to  open  books,  receive  subscriptions,  and  distribute  stock 
among  subscribers  as  they  shall  deem  most  conducive  to  the 
interests  of  the  corporation."  It  will  be  observed  that  the  duty 
with  which  these  commissioners  were  charged,  was  one  in  which  the 
public  at  large  had  no  direct  interest,  except  as  it  might  volun- 
tarily become  interested  in  the  stock  of  the  corporation,  and  the 
distinction  in  this  case  seems  to  be  based  upon  the  fact,  that  the 
decision  was  not  alone  to  affect  parties  to  the  transaction  or  adjud- 
ication in  the  first  instance,  and  who  might  have  had  some  voice  in 
the  selection  of  the  board,  and  the  scope  of  its  powers,  but  that  the 
board  was  a  creation  of  the  law,  and  entrusted  with  duties  of  a  judi- 
cial nature,  in  the  discharge  of  which  it  necessarily  had  power  to 
affect  and  bind  parties  who  might  subsequently  come  in,  with 
notice  of  the  terms  and  scope  of  the  act. 

In  Crocker  vs.  Crane,  supra,  reliance  is  had  upon  the  decision  in 
Ex  parte  Rogers,  7  Cow.  (N.  Y.)  526,  in  which  the  Court  upheld 
the  action  of  a  majority  of  a  board  consititing  of  a  canal  commissioner 


58  Cases  on  Agency.  [Book  I 

and  two  assessors,  elected  by  the  state  senate  to  assess  damages 
occasioned  by  canals.  In  the  opinion  per  curiam  it  is  said,  "  But 
in  regard  to  a  public  judicial  body  it  is  clearly  settled  that  though 
no  provision  be  made  giving  a  binding  effect  to  the  decision  of  a 
majority,  yet  where  they  all  convene  and  act  the  majority  may 
decide,  notwithstanding  the  express  dissent  of  the  minority."  Mr. 
Waterman's  note  {a)  to  this  case  states  the  law  to  be  that,  *' Where 
a  public  act  is  to  be  done  by  three  or  more  commissioners,  appointed 
in  a  statute,  and  a  competent  number  have  met  and  conferred, 
though  they  separate  and  a  majority  do  the  act  without  the  presence 
of  the  others,  the  act  seems  good  in  construction  of  law;  though  it 
is  otherwise  where  there  is  a  positive  statute  or  charter  requiring 
that  a  full  board  should  be  present  at  the  consummation.'"  The 
rule  is  in  substance  re-stated  in  Johnson  vs.  Dodd,  56  (N.  Y.)  76, 
and  also  in  Oruton  vs.  Hurlhurt,  22  Conn.  178.  It  is  applied  to 
ordinary  town  commissioners  of  highways  in  Bdbcoch  vs.  Lamb,  1 
Cow.  (N.  Y.)  238. 

The  general  rule,  that  in  matters  of  public  interest  the  majority 
of  those  upon  whom  the  power  or  authority  is  conferred  may  act, 
is  recognized  va.  Baltimore  Turnpike,  bWiwa..  (Penn.),  481;  Louh 
vs.  Woods,  15  111.  256;  Walker  vs.  Rogan,  1  Wis.  697;  Jefferson 
County  vs.  Slagle,  66  Penn.  202;  Austin  vs.  Helms,  65  K.  C.  560; 
provided  all  meet  and  confer;  but  not  when  the  minority  is  ignorant 
of  the  transaction,  and  has  no  opportunity  to  exercise  its  legitimate 
influence  in  the  deliberation.  {ScTienck  vs.  Peay,  1  Woolw.  175): 
or  when  the  act  in  terms  requires  the  presence  and  concurrence  of 
all.  New  York  Life  Ins.  and  Trust  Co.  vs.  Staats,  21  Barb  (N. 
Y.)  570;  Powell  vs.  Tattle,  3  Comst.  (N.  Y.)  396;  People  vs.  Cog- 
Mil,  47  Cal.  301,  which  only  says  all  must  be  present  under  the 
statute  in  question.  In  New  York  this  is  recognized  to  be  the  com- 
mon law  rule,  and  is  also  expressly  enacted  by  statute.  8  Abb. 
Pr.  (N.  S.)  234;  38  How.  Pr.  508;  10  Abb.  Pr.  233.  In  Pdl  vs. 
Ulmar,  21  Barb.  (N.  Y.)  500,  one  of  the  two  public  loan  com- 
missioners acted  in  the  matter  of  foreclosure  of  a  mortgage,  and  the 
court  holding  this  insufficient  says.  Strong,  J.:  **  Whereas  powers 
are  conferred  upon  a  number  to  act  collectively,  and  especially  in 
matters  involving  any  discretion,  it  is  an  indication  that  the  associ- 
ation if  not  the  concurrence  of  all  is  essential."  And  in  People 
vs.  Walker,  23  Barb  (N.  Y.)  304,  which  has  no  application  to  the 
case  at  bar  in  its  facts,  Mitchell,  J.,  in  a  very  able  and  exhaustive 
opinion,  says:     *' When  persons  are  appointed  by  the  law  to  act  as 


Chap.  Ill  J         Bank  vs.  Town  of  Mt.  Tabor. 


59 


special  tribunals  of  a  quasi  judicial  character  •  *  •  both  par- 
ties are  entitled  to  the  presence  of  all  the  judges  and  to  have  the 
benefits  of  the  consultation  of  each  with  every  other.  All  must 
therefore  meet  together,  and  consult,  but  then  a  majority  may 
decide.  In  Attorney  General  vs.  Davy,  2  Atk.  212,  three  out  of 
the  twelve  persons  had  power  to  choose  a  chaplain.  Two  of  the 
three  chose  a  chaplain,  the  third  dissented,  and  the  question  was 
whether  this  was  a  good  choice.  It  was  held  to  be  good.''  The 
learned  judge  sums  up  his  conclusions  from  a  consideration  of  all 
the  cases:  "  First,  that  where  a  private  authority  is  conferred,  all 
must  be  present,  and  all  must  concur,  unless  provision  be  otherwise 
made.  Second,  that  where  a  public  authority  is  conferred  on 
individuals  (not  on  a  court)  who  are  to  act  judicially,  all  must 
confer  together,  as  that  is  the  object  of  having  more  than  one  or 
two,  but  that  a  majority  may  decide.*'  In  People  vs.  Kicliols,  52 
N.  Y.  478;  s.  o.  11  Am.  Rep.  734,  where  an  act  provided  for  the 
purchase  by  the  state  of  certain  relics  of  George  Washington,  the 
money  appropriated,  to  be  paid  only  upon  the  certificate  of  three 
persons  named  in  the  act  that  the  relics  were  genuine,  and  that  in 
their  judgment  it  was  desirable  that  they  should  be  placed  in  the 
museum  of  the  state  library,  the  three  met  and  one  refused  to 
certify.  The  other  two  signed  a  certificate  in  which  his  refusal  to 
concur  with  them  was  set  forth.  The  certificate  was  held  sufficient, 
following  Ex  parte  Rogers,  on  the  ground  that  the  matter  was  of 
public  concern,  and  "  a  majority  act  for  the  whole  when  all  have 
met."  This  holding,  Peckham,  J.,  says,  in  the  opinion,  would 
be  in  accordance  with  common  law  principles,  but  is  also  within  2 

B.  S.  555,  §  27. 

The  rule  has  been  applied  to  committees  of  towns.  In  Martin 
vs.  Lemon,  26  Conn.  192,  a  committee  of  a  town  had  authority  to 
remove  obstructions  and  nuisances.  One  acted  without  the  advice 
or  concurrence  of  the  others  and  it  was  held  insufficient.     Stores, 

C.  J.  in  the  opinion,  lays  down  the  common  law  rule  as  follows: 
**  If  the  act  is  one  which  requires  the  exercise  of  discretion  and 
judgment,  in  which  case  it  is  usually  termed  a  judicial  act,  unless 
special  provision  is  otherwise  made,  the  persons  to  whom  the 
authority  is  given  must  meet  and  confer  together  and  be  present 
when  the  act  is  performed,  in  which  case  a  majority  of  them  may 
perform  the  act;  or  after  all  of  them  have  been  notified  to  meet,  a 
majority  of  them  having  met  will  constitute  a  quorum  or  sufficieut 
number  to  perform  the  act,  and  according  to  some  modern  au  thor- 


60  Cases  on  Agency.  [Book  I 

ities,  the  act  may  be  legally  done  by  the  direction  or  with  the  con- 
currence of  a  major  part  of  the  quorum  so  assembled;"  citing  Damon 
vs.  Granlyy  2  Pick.  (Mass.)  345,  in  which  the  town  chose  a  com- 
mittee to  superintend  the  building  of  a  church,  and  it  was  held 
that  a  majority  of  such  committee  constituted  a  quorum,  and  that 
a  majority  of  the  quorum  might  act  as  the  committee.  That  a  major- 
ity of  the  town  committee  may  bind  is  held  in  Hanson  vs.  Dexter,  36 
Me.  516,  and  Gallup  vs.  Tracy,  25  Conn.  10.  Also  to  assessors.  In 
Williams  vs.  School  District,  21  Pick.  75,  8.  c,  32  Am.  Dec.  243, 
which  was  a  case  where  two  of  three  school  district  assessors  acted, 
and  the  third  did  not  participate  and  was  not  notified,  but  had  been 
previously  invited  by  one  of  the  two  to  assist  in  the  assessment,  and 
had  then  and  repeatedly  declined  to  have  anything  to  do  with  it, 
Shaw,  0.  J.,  says:  ''Where  a  body  or  board  of  officers  is  constituted 
by  law  to  perform  a  trust  for  the  public,  or  to  execute  a  power  or 
perform  a  duty  prescribed  by  law,  it  is  not  necessary  that  all 
should  concur  in  the  act  done.  The  act  of  the  majority  is  the  act 
of  the  body.  And  where  all  have  due  notice  of  the  time  and  place 
of  meeting,  in  the  manner  prescribed  by  law,  if  so  prescribed,  or  by 
the  rules  and  regulations  of  the  body  itself,  if  there  be  any,  other- 
wise if  reasonable  notice  be  given,  and  no  practice  or  unfair  means 
are  used  to  prevent  all  from  attending  and  participating  in  the.pro- 
ceeding,  it  is  no  objection  that  all  the  members  do  not  attend,  if 
there  be  a  quorum.  In  the  present  case  all  three  having  had  notice 
and  an  opportunity  to  act,  the  act  of  two  is  suflScient." 

In  New  York  it  is  held  generally  that  where  power  is  vested  in  a 
board  of  assessors  composed  of  three,  all  must  be  notified  to  meet 
and  consult,  though  a  majority  may  decide.  Matter  of  Beehman, 
1  Abb.  Pr.  449;  31  How.  Pr.  IG;  Matter  of  Palmer,  Id.  42. 

The  case  of  George  vs.  School  District,  6  Met.  (Mass. )  497,  is  perti- 
nent, as  there  the  third  assessor,  like  the  third  commissioner  in  the 
case  at  bar,  failed  to  qualify  by  taking  the  oath.  Shaw,  0.  J.,  in 
the  opinion,  says:  *' It  appears  by  the  facts  stated  that  three 
assessors  were  duly  elected  by  the  town,  at  their  annual  meeting; 
that  two  of  them  were  forthwith  sworn,  and  thereby  became  quali- 
fied to  act;  but  that  the  other  one  was  not  sworn,  and  when  noti- 
fied of  his  election,  made  no  reply;  that  he  never  in  form  declined 
to  accept  the  office,  but  when  called  on  by  the  other  two  to  act 
with  them,  ho  sent  notice  to  them  declining  to  act.  But  he  gave 
no  notice  of  this  to  the  town,  and  the  town  did  not  proceed  to  treat 
his  neglect  to  take  the  oath  as  a  vacancy,  by  choosing  another  in 


Ohap.  Ill]         Bank  vs.  Town  of  Mt.  Tabob.  61 

his  stead.  The  law  requires  the  town,  at  their  annual  meeting,  to 
choose  three  or  more  assessors.  Under  these  circumstances  the 
Court  are  of  opinion,  that  when  three  assessors  are  duly  chosen  by 
the  town,  there  is  a  board  of  assessors.  Each  is  an  assessor.  But 
until  qualified  by  taking  the  oath  he  is  not  competent  to  act.  If 
a  majority  do  qualify  by  taking  the  oath,  and  the  third  has  not 
taken  the  oath,  still,  if  he  has  notice  of  their  proceeding  to  execute 
the  office,  and  decline  to  take  the  oath  and  act  with  them, 
their  acts  will  be  good,  in  the  same  manner  as  if  ho  had  taken  the 
oath  and  declined  to  act  with  them;  because  he  is  an  assessor 
and  the  office  is  full.  •  •  ♦  ♦  There  is  a  board,  and  of  these, 
by  force  of  the  statute  as  well  as  by  long  usage,  the  majority  may 
act.'*  In  our  state  the  general  rule  has  been  stated  and  applied  in 
Newel  vs.  Exr.  of  Keith,  11  Vt.  214;  Wolcott  vs.  Wolcott,  19  Id. 
37;  Hodges  vs.  Thacher,  23  Id.  455. 

The  rule  of  law  being  clearly  established  and  the  distinctions 
clearly  and  sharply  defined,  it  only  remains  to  apply  them  to  the 
commissioners  in  the  case  at  bar. 

Were  the  commissioners  provided  for  by  the  act  of  1867,  and 
named  in  the  instrument  of  assent  of  the  town  of  Mount  Tabor, 
private  agents,  or  clothed  with  a  power,  trust,  or  authority  for 
merely  private  purposes?  We  think  not.  They  represented  no  party 
or  interest  but  the  town  which  is  a  public  corporation,  and  the 
inhabitants  thereof.  Were  they  then  public  officers?  It  is  said 
upon  the  authority  of  numerous  cases,  that  every  office  is  a  public 
office,  the  duties  of  which  concern  the  public.  In  Bradford  vs. 
Justice's  Inferior  Court,  33  Ga.  332,  the  following  excellent  defi- 
nition of  a  public  officer  is  given:  "  When  an  individual  has  been 
appointed  or  elected  in  a  manner  prescribed  by  law,  has  a  designa- 
tion or  title  given  him  by  law,  and  exercises  functions,  concerning 
the  public,  assigned  to  him  by  law,  he  must  be  regarded  as  a  pub- 
lic officer."  In  People  vs.  Hayes,  7  How.  Pr.  248,  commissioners 
to  lay  out  a  road  were  held  to  be  public  officers,  and  in  People  vs. 
Comptroller,  20  Wend.  (N.  Y.)  596,  commissioners  appointed  by 
the  governor,  secretary  of  state,  and  comptroller  to  contract  for 
and  superintend  the  erection  of  an  asylum,  were  held  to  be  public 
officers,  the  question  being  upon  their  removal. 

Whether  the  commissioners  here  were  strictly  public  officers, 
however,  is  not  material,  for  the  legal  distinction  which  determines 
the  rule  to  be  applied  is  not  based  upon  the  legal  character  of  the 


62  Cases  ok  Agency.  [Book  1 

board,  but  upon  the  origin  and  nature  of  its  authority  and  the  char- 
acter of  the  duties  imposed  therewith.  "We  think  they,  at  all  events, 
come  clearly  within  the  definition  in  Williams  vs.  School  District, 
supra,  of  *'  a  body  or  board  of  officers  constituted  by  law  to  per- 
form a  trust  for  the  public,  or  to  execute  a  power  or  perform  a 
duty  prescribed  by  law;^*  and  in  Crocker  vs.  Crane,  supra,  of  a 
board  of  commissioners  appointed  by  statute  to  decide  a  matter. 
These  commissioners  are  officers  appointed  by  the  statute,  which 
leaves  their  selection  to  the  majority  in  numbers  and  amount  of 
the  legal  taxpayers  of  the  town.  They  are  to  act  under  an  oath  of 
office^  and  to  perform  certain  duties,  the  immediate  object  and 
purpose  of  which  is  to  obtain  for  the  town  better  railroad  connec- 
tions and  facilities.  That  a  railroad  is  a  public  work  and  interest 
has  long  been  established  beyond  a  question.  Jones'  Eailroad 
Securities,  Ch.  7;  1  Dill,  on  Mun.  Corp.  219  et  scq.,  and  authori- 
ties cited;  also  Bennington  vs.  Paries,  50  Vt.  ITS.  In  the  dis- 
charge of  these  duties  they  were  to  act  as  the  agents  of  the  town, 
and  were  given  power  to  make  contracts  which  should  bind  the 
town,  and  to  execute  a  certificate  which  should  be  conclusive  evi- 
dence against  the  town.  Although  a  town  may  be  small,  it  is  none 
the  less  a  public  corporation  and  its  inhabitants  a  "public''  Vil- 
lage of  Winooski  vs.  Gokey,  49  Vt.  282.  We  think  these  commis- 
sioners were  officers  created  by  law,  to  discharge  duties  and  execute 
an  authority  involving  deliberation  and  the  exercise  of  discretion, 
and  of  a  purely  public  character,  and  that  they  therefore  come 
clearly  within  the  well-established,  common-law  rule  which  gives 
validity  to  the  decision  and  act  of  the  majority  when  all  have  met 
and  conferred. 

[  Omitting  a  statutory  consideration.] 

We  must  hold  that  the  certificate  of  a  majority  of  the  commis- 
sioners named  in  the  instrument  of  assent  of  the  town  of  Mount 
Tabor,  all  having  met  and  deliberated,  is  a  legal  and  valid  certifi- 
cate in  compliance  with  the  requirements  of  the  law,  and  conclu- 
Bive  evidence  of  the  facts  set  forth  in  it.  The  evidence  offered  by 
the  defendant  to  impeach  the  truth  of  those  facts  was  therefore 
properly  excluded. 

The  signing  of  the  bonds  by  two  of  the  three  select  men  was 
sufficient  under  sec.  92,  ch.  15,  Gen.  Sts. 

The  law  being  as  we  have  held,  none  of  the  other  proof  offered 
by  the  defendant  would  constitute  any  defense  to  the  bonds  or 


Chap.  Ill  ]         Bank  vs.  Town  of  Mt,  Tabob.  63 

coupons  in  the  hands  of  a  hona  fide  holder,  and  it  was  tlierefore 

properly  excluded. 

Judgment  affirmed. 

Barret  and  Powers,  JJ.,  dissented. 


(154  Massachusetts,  277.) 

MoNEIL  vs.  BOSTON  CHAMBER  OF  COMMERCE. 

(Supreme  Judicial  Court  of  Massachusetts,  September,  1891.  J 

Action  to  recover  damages  for  the  breach  of  an  alleged  agree- 
ment to  employ  the  plaintiff  as  the  lowest  bidder  to  erect  the  new 
chamber  of  commerce  for  defendant,  which  agrecdient  Avas  entered 
into  with  him  by  a  building  committee  appointed  under  the  follow- 
ing vote,  passed  on  October  9,  1889,  by  the  defendant's  stock- 
holders: Voted  that  a  committee  of  five  be  appointed  by  the  chair- 
man of  this  meeting,  of  whom  the  president  shall  be  one,  with 
full  powers  and  authority  to  procure  plans  and  specifications  for  a 
building,  and  make  all  contracts  for  the  erection  and  completion 
of  the  same,  subject  to  the  approval  of  the  directors. 

Five  different  builders  had  been  selected  by  the  committee  from 
whom  to  solicit  bids,  but  four  of  theni  refused  to  bid  under  the 
terms  proposed.  Thereupon,  on  March  15,  1890,  a  conference  was 
had  between  the  builders  and  four  members  of  the  committee,  at 
which  certain  changes  in  the  terms  were  agreed  upon,  and  it  was 
contended  that  these  four  members  then  agreed,  upon  behalf  of 
defendants,  to  accept  the  lowest  bid,  in  case  the  building  was  built 
substantially  in  accordance  with  the  plans  and  specifications. 

The  jury  found  specially  (1)  that  the  committee  did  make  the 
contract  as  alleged;  (2)  that  it  was  appi'oved  by  the  directors;  (3) 
that  the  contract  was  within  the  ostensible  authority  of  the  com- 
mittee; and,  (4)  that  the  building,  as  finally  contracted  for,  was 
a  building  substantially  in  accordance  with  the  plans  and 
specifications. 

R.  M.  Morse,  Jr.,  and  C.  E.  Hillier,  for  plaintifE. 
R.  Stone,  for  defendant. 

Allen,  J.  (After  determining  that  there  was  evidence  upon 
which   the   first   finding  might  be   sustained.)       The  defendant 


64  Oases  on  Agency.  [  Book  I 

further  contends,  that  the  building  committee  were  joint  agents 
of  the  defendant,  and  that  the  four  members  who  were  present 
at  the  conference  of  March  15  could  not  execute  the  power 
which  was  delegated  to  the  whole  committee,  consisting  of  five 
members,  jointly.  It  does  not  clearly  appear  that  this  point  was 
taken  at  the  trial,  and  it  is  not  noticed  in  the  charge  of  the  presid- 
ing judge;  but  we  have  considered  it.  Where  special  agents  are 
appointed  to  act  jointly  in  the  execution  of  a  particular  power,  it 
has  often  been  held  that  the  action  of  all  is  necessary,  in  order  to 
execute  the  power  properly.  This  rule,  however,  is  subject  to  many 
qualifications  or  exceptions.  It  is  well  understood  that  public 
agents  may  usually  act  by  a  majority.  So,  also,  it  has  been  settled 
that  a  majority  of  the  directors  of  a  corporation  constitute  a 
quorum  and  a  majority  of  the  quorum  may  act.  Sarge*itvs.  Webster, 
13  Met.  497,  504;  46  Am.  Dec.  743;  Edcjerly  vs.  Emerson,  23  N.  H. 
555;  55  Am.  Dec.  207;  Wells  vs.  Railway  White  Rubber  Co.,  4  0. 
E.  Green,  402. 

Generally  speaking,  a  committee  of  a  corporation  is  subject  to 
the  same  rules  as  the  directors.  State  vs.  Jersey  City,  3  Dutch. 
493;  Junkins  vs.  Union  School  District,  39  Maine,  220.  It  would 
be  very  inconvenient  in  practice  if  a  committee  of  this  character, 
whose  duties  involve  many  acts  in  carrying  out  the  general  purpose 
of  their  appointment,  could  do  nothing  if  a  single  member  should 
be  absent.  There  is  sufficient  precedent  for  holding  that  a  majority 
may  act,  and  such  is  the  better  rule.  Kupper  vs.  South  Parish  in 
Augusta,  12  Mass.  185;  Damon  vs.  Granby,  2  Pick.  345;  Hayward 
vs.  Pilgrim  Society,  21  Pick.  270,  275,  277;  Baven  vs.  Lotvdl,  5 
Met.  35,  42;  Weymouth  <&  Braintree  Fire  District  vs.  County  Com- 
missioners, 108  Mass.  142.  Moreover,  there  was  evidence  from 
which  the  jury  might  infer  the  assent  of  Mr.  Speare,  the  absent 
member  of  the  committee,  to  what  was  done  by  his  associates. 
He  went  away,  temporarily,  to  New  Orleans,  leaving  the  busi- 
ness in  their  hands.  But  on  his  return  it  expressly  appears 
that  he  had  a  conference  with  them,  or  with  some  of  them, 
and  that  they  undertook  to  tell  him  what  had  been  done.  He 
denies,  to  be  sure,  that  what  they  told  him  was  in  accordance 
with  what  the  plaintiff  contends  and  what  the  jury  have  found  to 
be  the  fact.  The  significant  fact,  however,  that  they  undertook  to 
tell  him  the  result  of  the  conference  in  respect  to  the  right  of  the 
committee  to  reject  any  and  all  bids,  is  testified  to  by  Mr.  Speare. 
lie  says:    *•  They  told  me  they  had  expressly  reserved  that."    11, 


Chap.  Ill]     McNeil  vs.  Chamber  of  CoiiMERCB.  65 

in  point  of  fact,  the  reservation  of  this  right  was  accompanied  with 
the  qualification  that  they  would  accept  the  lowest  bid  in  case  they 
should  build  substantially  in  accordance  with  the  plans  and  speci- 
fications submitted,  the  jury  might  think  it  a  natural  inference 
that  at  that  time,  before  any  controversy  had  arisen  as  to  accepting 
the  plaintiff's  bid,  Mr.  Spcare's  associates  told  him  all  that  had 
been  agreed  to  on  this  head,  though  Mr.  Speare  had  forgotten  a 
part  of  it  at  the  time  of  testifying.  Mr.  Lothrop's  testimony  tends 
to  support  such  an  inference.  lie  said:  "Before  the  meeting,  I 
stated  to  Mr.  Blaney  (a  member  of  the  building  committee)  and  Mr. 
Speare,  that  in  my  opinion  the  right  to  reject  any  and  all  bids 
passed  [ceased?]  after  they  had  selected  five  from  the  many 
mechanics  who  had  been  recommended;  and  I  was  assured  by  them 
that  if  any  one  of  these  parties  whom  they  had  selected,  and  whom 
they  supposed  to  be  responsible,  should  be  the  lowest  bidder,  his 
bid  would  be  accepted,  and  it  was  on  that  condition  that  I  esti- 
mated, and  I  should  not  have  figured  on  any  other."  He  further 
testified  that,  in  a  private  conversation,  perhaps  a  different  one, 
before  that  meeting,  Mr.  Speare  said  he  would  not  consent  to  give 
up  the  right  to  reject  all  bids.  It  is  further  to  be  observed,  that 
the  chief  reason  assigned  by  the  members  of  the  committee  who 
were  present  at  the  conference  why  they  did  not  wish  to  give  up 
the  right  to  reject  any  and  all  bids  was,  that  they  were  not  willing 
to  be  bound  absolutely;  that  the  cost  of  the  building  might  be  too 
much  for  their  means,  so  that  a  substantial  change  of  plan  might 
be  necessary,  or  possibly  the  erection  of  the  building  given  up 
entirely;  and  that  the  lowest  bid  might  be  entirely  above  the  views 
of  the  committee,  so  that  they  were  unwilling  to  consent  to  accept 
it  unconditionally.  Mr.  Speare  himself  testifies  that  he  gave  to 
Mr.  Lothrop  two  reasons  why  the  committee  would  not  give  up  the 
right  to  reject  all  bids.  The  first  was,  that  the  lowest  bid  might 
be  a  sum  which  the  directors  would  not  think  advisable  to  spend 
to  erect  a  building.  The  second  was,  that  it  was  the  directors  who 
would  be  the  final  arbitrators  whether  the  committee  should  award 
the  contract,  and  therefore  the  committee  would  have  no  right  to 
give  up  the  right  to  reject  any  and  all  bids.  IMr.  Lothrop,  on  the 
other  hand,  testified  very  explicitly  and  in  detail,  tliat  while  Mr. 
Speare  in  conversation  had  mentioned  the  names  of  the  committee 
to  him,  he  (Mr.  Lothrop)  did  not  know  then,  nor,  at  the  time  of 
testifying,  whether  the  action  of  the  committee  must  be  approved 
5 


66  Cases  on  Agency.  [Book  I 

by  any  other  board  or  body.  Looking  at  all  tbe  testimony,  if  the 
objection  now  urged  had  been  distinctly  presented,  as  a  question  of 
fact  at  the  trial,  it  must  have  been  left  to  the  jury  to  determine 
whether  Mr.  Speare  assented  to  the  terms  of  the  contract,  by  which, 
as  found  by  the  jury,  his  four  associates  purported  to  agree  to 
accept  the  lowest  bidder,  in  case  the  building  should  be  built  sub- 
stantially in  accordance  with  the  plans  and  specifications  submit- 
ted. Their  finding  that  the  contract  was  approved  by  the  directors 
must  have  involved  the  finding  that  it  was  approved  by  Mr.  Speare. 
And  this  finding  might  well  be  reached  without  implying  any 
intentional  misstatement  on  his  part. 

The  remaining  questions  are  whether  there  was  suflBcient  evi- 
dence to  warrant  the  second  and  third  findings,  or  either  of  them, 
that  such  contract,  if  made  by  the  committee,  was  approved  bj 
the  directors,  and  was  within  the  ostensible  authority  of  the  com- 
mittee. If  either  of  these  was  supported  by  the  evidence,  it  it 
enough  for  the  plaintiff's  purposes,  and  most  if  not  all,  of  the  evi- 
deuce  relating  to  the  second  finding  bears  also  upon  the  third. 
The  plaintiff  contends  that  it  was  within  the  ostensible  authority 
of  the  committee  to  fix  the  terms  upon  which  it  would  receive 
bids,  and  to  make  the  agreement  which  is  embodied  in  the  first 
finding  of  the  jury  without  any  reference  to  an  approval  by  the 
directors.  He  urges  that  this  was  within  the  ordinary  province  of 
a  building  committee;  and  that  in  this  instance  the  directors  knew 
that  there  was  to  be  a  competition  for  bids;  that  this  competition 
was  to  be  limited  to  five  selected  builders,  and  that  the  com- 
mittee would  fix  the  terms  of  it;  that  the  directors  were  well 
aware  that  the  committee  was  going  on  to  attend  to  all  these 
matters;  that  a  vote  had  already  been  passed  by  the  directors, 
authorizing  the  committee  to  make  leases  in  the  new  building;  that 
they  also  knew  that  the  architects  had  been  selected,  that  the  plana 
were  hanging  up  in  the  office;  that  the  erection  of  the  new  build- 
ing was  the  most  important  subject  which  the  board  of  directors 
or  the  chamber  of  commerce  had  under  consideration  during  this 
period,  that  it  was  a  subject  of  constant  talk;  and  that  no 
director  ever  objected  to  the  committee's  undertaking  to  fix  the 
terms  of  the  competition  among  the  builders,  or  questioned  its 
power  to  do  so,  till  after  a  letter  from  the  plaintiff's  attorney 
threatening  an  action  at  law.  There  was  testimony  in  support  of 
those  various  propositions.  So  far  as  appears,  no  one  of  the  bidders 
doubted  the  power  of  the  committee  to  act  in  the  matter.     The 


Chap.  Ill]     McNeil  vs.  Chamber  of  Commerce.  C7 

committee  assumed  to  make  changes  in  the  terms  of  competition 
at  its  own  will.  There  is  nothing  to  show  any  snggestion  to  any 
of  the  bidders  in  respect  to  the  need  of  consnlting  the  directors, 
except  in  Mr.  Speare's  testimony,  already  referred  to,  of  his  conver- 
sation with  Mr.  Lothrop.  The  notice  to  bidders  held  out  the 
building  committee  as  having  the  power  to  act  in  the  premises. 
No  mention  of  the  directors  was  made  in  it.  The  board  of 
directors  had  regular  monthly  meetings.  Mr.  Speare  was  presi- 
dent of  the  board,  and  was  upon  the  building  committee.  lie 
testified:  **  It  was  known  to  the  drcctors,  in  a  general  way,  that 
specifications,  notice  to  bidders,  and  other  details  preliminary  to 
obtaining  bids  and  making  the  contract,  were  being  attended  to  by 
the  committee  and  the  architects.'*  "  Was  it  not  the  understand- 
ing of  the  directors  that  there  was  to  be  a  competition?  "  "  Yes, 
sir."  "How  was  that  known  to  them?'*  "Simply  in  a  general 
way;  I  presume  at  a  meeting  of  the  directors  I  had  told  them." 
He  added  later,  that  the  board  of  directors  knew  that  the  commit- 
tee was  trying  to  get  bids,  and  that  no  effort  was  made  to  inform 
bidders  that  they  could  not  safely  deal  with  the  committee. 
According  to  the  strict  letter  of  the  original  vote,  the  committee 
could  not  even  procure  plans  and  specifications  except  subject  to  the 
approval  of  the  directors.  It  was  allowed,  however,  not  only  to 
procure  plans  and  specifications,  but  to  employ  the  architects  with- 
out formally  consulting  the  directors. 

"Without  dwelling  further  upon  details  of  evidence,  the  Jury 
might  properly  find  that  the  committee  itself,  believed  that  it  was 
authorized  to  go  on,  as  it  did,  without  consulting  the  directors  as 
to  the  details,  and  that  the  directors  were  aware  in  a  general  way  of 
what  the  committee  was  doing.  It  seems  to  us  that  the  jury,  as  a 
result  of  the  whole  testimony,  might  properly  come  to  the  conclusion 
that  the  contract  was  within  the  ostensible  authority  of  the  commit- 
tee, and  that  the  bidders  had  a  right  to  assume  that  the  defendant 
would  be  bound  by  the  contract  of  the  committee  as  to  the  terms 
of  the  bidding. 

The  doctrine  as  to  ostensible  authority  is  thus  stated  in  Bronson 
vs.  Choppell,  12  Wall.  681,  683:  "Where  one,  without  objection, 
suffers  another  to  do  acts  which  proceed  upon  the  ground  of  author- 
ity from  him,  or  by  his  conduct  adopts  and  sanctions  such  acts 
after  they  are  done,  he  will  be  bound,  although  no  previous  author- 
ity exist,  in  all  respects  as  if  the  requisite  power  had  been  given  in 
the  most  formal  manner."  Circumstances  may  warrant  an  inference 


68  Cases  on  Agency.  [Book  I 

that  acts  of  a  committee,  openly  done  and  extending  over  a  con- 
siderable period  of  time,  were  known  and  assented  to  by  those  who 
appointed  the  committee.  The  directors  represented  the  corpora- 
tion, and  if  the  directors  knew  and  by  silence  acquiesced  in  the  acts 
of  the  committee,  that  is  enough.  The  vote  of  the  stockholders 
would  show  what  in  the  first  instance  was  the  actual  authority  of 
the  committee,  but  the  course  of  the  directors  might  be  considered 
in  determining  its  ostensible  authority.  A  secret  or  unknown  lim- 
itation of  authority  imposed  by  the  stockholders  would  not  control 
an  apparent  authority  from  the  directors,  since  the  business  was 
within  the  scope  of  the  general  authority  of  directors.  This  was 
clearly  left  to  the  jury  by  the  presiding  judge,  in  terms  to  which 
the  defendant  did  not  except,  and  which  appear  to  be  unexception- 
able. The  decisions  cited  by  the  plaintiff  afford  various  illustrations 
of  the  application  of  the  rule  of  law  as  to  apparent  authority  in  an 
agent.  The  rule  itself  is  not  open  to  doubt.  Fay  vs.  KoUc,  12 
Cush.  1,  17,  18;  Lester  v.  Webb,  1  Allen,  34;  Atjer  vs.  R.  W.  Bell 
Manuf.  Co.,  147  Mass.  46;  Insurance  Co.  vs.  McCain,  96  TJ.  S.  84 

{post, );  Mining  Co.  vs.  Anglo.  California  Banh,  104  TJ.  S.  192. 

See,  also.  Case  vs.  Banh,  100  U.  S.  446,  454.  The  defendant  does 
not  now  insist  that  the  evidence  did  not  warrant  the  fourth  find- 
ing of  the  jury. 

The  result  is,  that  there  should  be,  judgment  for  the  plaintiff  on 
the  finding. 


(37  Minnesota,  98,  5  Am.  St.  Rep.  827.) 

DEAKIN  vs.  UNDEEWOOD. 

(Supreme  Court  of  Minnesota,  June,  1887.) 

Action  for  specific  performance.      The  opinion  states  the  facts. 
John  B.  &  W.  H.  Sanborn,  for  appellant, 
Uri  L.  Lamprey,  for  respondent. 

MiTcnELL,  J.  This  was  an  action  to  compel  specific  perform- 
ance of  a  contract  for  the  sale  of  real  estate.  Plaintiff  alleges  that 
the  defendant  made  the  contract  "by  A.  B.  Wilgus,  his  duly 
authorized  agent  and  attorney  in  fact."    The  contract  is  attached 


Chap.  Ill  ]  Deakin  vs.  Undekwood.  C9 

as  an  exhibit  to  the    complaint,  and  is   signed,  *'  0,  W.  Under- 
wood, by  A.  B.  Wilgns,  Agent." 

1.  It  appears  from  the  eyideuce  that  the  authority  to  sell  was 
given  to  the  firm  of  A.  B.  Wilgus  &  Brother,  a  partnership  com- 
posed of  A.  B.  Wilgns  and  E.  P.  "Wilgus.  It  is  claimed  that,  upon 
this  state  of  facts,  there  was  a  failure  of  proof.  But  the  material 
allegation  of  the  complaint  was  that  defendant  had  made  this 
contract  with  plaintiff.  It  was  not  necessary  to  allege  that  it  was 
made  throngli  an  agent.  It  would  have  been  enough  to  declare 
upon  it  generally  as  of  the  personal  act  of  the  principal.  The 
substance  of  the  issue  was  not  whether  defendant  had  made  the 
contract  through  an  agent,  but  whether  he  had  made  it  at  all. 
Hence  it  cannot  be  said  that  there  was  a  failure  of  proof.  The 
most  that  can  be  possibly  claimed  is,  that  there  was  a  variance 
between  the  allegation  and  proof,  but  which  could  not,  in  this  case, 
have  misled  the  defendant  to  his  prejudice,  and  therefore  is  not 
material. 

2.  Defendant  further  contends  that  the  authority  to  sell  being  to 
the  firm  of  A.  B.  Wilgus  &  Brother,  which  was  composed  of  two 
members,  this  authority  could  only  be  executed  by  the  two  jointly, 
and  not  by  one  separately,  so  as  to  bind  the  principal.  In  support 
of  this  contention,  he  invokes  the  well-known  general  rule  of  the 
common  law,  that  where  authority  to  do  an  act  is  conferred  upon 
two  or  more  agents,  the  act  is  valid  to  bind  the  principal  only  when 
all  of  them  concur  in  doing  it;  the  power  being  joint  and  not 
several.  Ilollins  vs.  Phelps,  5  Minn.  463.  Even  where  the 
authority  is  given  to  several  agents,  this  rule  is  not  so  rigid  and 
inflexible  as  to  overcome  the  apparent  intention  of  the  parties  to 
the  contrary.  Story  on  Agency,  §§  42,  43;  Haidey  vs.  Keeler,  53  N. 
Y.  114  {ante,  50).  But  we  think  the  rule  has  no  application  where 
the  authority  is  given  to  a  partnership  as  such.  Each  member  of 
a  partnership  is  the  agent  of  the  firm,  and  all  the  partners  are 
jointly  accountable  for  the  acts  of  each  other;  and  where  a  person 
appoints  a  partnership  as  his  agent,  he  must  be  deemed  to  have 
done  so  with  reference  to  these  rules  of  law.  When  a  person 
delegates  authority  to  a  firm,  it  is  an  appointment  of  the  partner- 
ship as  his  agent,  and  not  of  the  individual  members  as  his  several 
and  separate  agents.  Hence  each  partner  may  execute,  and  the 
act  of  one  is  the  act  of  the  firm,  and  in  strict  pursuance  of  the 
power.     Gordon  vs.  Ihtcltanan,  5  Yerg.  (Tcnn.)  71. 

But  it  is  claimed  that,  conceding  this,  he  must  do  it  in  the  name 


70  Oases  on  Agency.  [Book  I 

of  the  firm,  and  that  if,  as  in  the  present  case,  he  uses  his  individ- 
nal  name,  it  is  not  the  act  of  the  partnership,  and  ■will  not  bind  it. 
The  defendant  seems  to  overlook  the  fact  that  the  contract  is  the 
act  of  the  principal,  and  not  of  the  agent,  and  that  the  party  to  be 
bonnd  is  the  former,  and  not  the  latter.  Hence  the  important 
question  is,  whether  the  principalis  name  has  been  signed  to  the 
contract  by  one  having  authority  to  do  so.  That  in  this  case  A. 
B.  "Wilgns,  as  a  member  of  the  firm  of  A.  B.  Wilgus  &  Brother, 
had,  by  virtue  of  the  authority  given  the  firm,  power  to  execute 
this  contract  in  the  name  of  the  defendant,  cannot  be  questioned, 
and  it  is  wholly  immaterial  whether  to  that  name  he  added  **  by 
A.  B.  Wilgus  &  Brother,"  or  "by  A.  B.  Wilgus,"  or  nothing  at  all. 
An  agent,  authorized  to  sign  the  name  of  his  principal,  effectually 
binds  him  by  simply  fixing  to  the  instrument  the  name  of  his  princi- 
pal, as  if  it  were  his  personal  act.  The  particular  form  of  the  execu- 
tion is  not  material,  if  it  be  done  in  the  name  of  the  principal,  and  by 
one  having  authority  in  fact  to  execute  the  instrument:  Berkey  vs. 
Judd,  22  Minn.  287,  302;  First  National  Bank  vs.  Loyhed,  28  Id. 
396;  Devinney  vs.  Reynolds,  1  Watts  &  S.  (Penn.)  328;  Forsyth  vs. 
Day,  41  Me.  382. 

3.  The  authority  to  the  firm  was  to  sell  for  one-half  cash,  and 
the  other  half  payable  on  or  before  one  year.  They  sold  for  one- 
half  cash  and  the  other  half  payable  in  one  year.  It  is  claimed 
that  this  was  unauthorized,  and  therefore  the  principal  is  not 
bound.  The  terms  of  the  contract  as  executed,  so  far  as  they 
affect  the  rights  of  the  defendant,  were  in  legal  effect  the  same  as 
those  authorized.  By  each  he  would  be  entitled  to  demand  pay- 
ment in  one  year,  and  not  before.  The  distinction  between  this 
case  and  one  where  the  facts  are  exactly  reversed  (such  as  Jack- 
son vs.  Badger,  35  Minn.  62)  will  be  apparent  on  a  moment's 
reflection.     *    *     * 

We  therefore  think  that  the  evidence  shows  a  binding  contract 
by  the  defendant  to  sell  and  convey,  and  shows  no  valid  reason 
why  he  ought  not  to  and  cannot  perform. 

Order  reversed. 

Note — Aa  to  the  acts  of  one  of  a  firm  of  insurance  agents;  Purinton  vs. 
Insurance  Co.,  72  Me.  22;  Oordon  vs.  Buchanan,  5  Yerg.  (Tenn.)71;  Kenne- 
bec Co.  vs.  Insurance  Co.,  6  Gray  (Mass.)  2(J4;  Newman  vs.  Insurance  Co., 
17  Minn.  123. 

As  to  acts  of  one  of  a  firm  of  attorneys,  Jeffries  vs.  Insurance  Co.,  110 
U.  S.  805. 


Chap.  IV  ]  Benjamin  vs.  Dockham,  71 


CHAPTER    IV. 

OF  THE  APPOINTMENT  OF  AGENTS  AND  THE  EVIDENCE 

.  THEREOF. 


L 

AUTHOEITY     IMPLIED     BY     LAW. 


(134  Massachusetts,  418.) 

BENJAMIN  vs.   DOCKHAM. 

f  Supreme  Judicial  Court  of  Massachusetts,  March,  18SS.) 

Action  for  milk  sold  to  defendant's  wife.  The  opinion  states 
the  facts.     Judgment  below  for  plaintiff. 

C  P.  Weston,  for  defendant. 

S.  H.  Dudley  and  W.  P.  Dudley  for  plaintiff. 

Holmes,  J.  The  plaintiff's  declaration  was  for  milk  delivered 
to  the  defendant  by  the  plaintiff  at  the  defendant's  request.  His 
proof  was  of  a  delivery  to  the  defendant's  wife,  who  was  living 
apart  from  her  husband,  without  means  of  support,  by  reason  of 
his  cruelty.  The  only  ground  of  exception  which  we  are  asked  to 
consider  is,  that  there  was  a  variance  between  the  declaration  and 
the  proof.  If  there  were  such  a  variance,  as  the  case  has  been  tried 
on  its  merits,  and  it  appears  from  the  statement  of  the  defendant's 
counsel  himself  that  there  can  have  been  no  surprise,  an  amend- 
ment would  be  allowed.  Peck  vs.  Waters,  104  Mass.  345,  351; 
Cleaves  vs.  Lord,  3  Gray  66.  But  we  think  no  amendment  is 
necessary.  The  allegation  of  delivery  to  the  defendant  would  seem 
to  be  sufficient  in  a  common  count,  even  when  the  delivery  was  to 
a  third  person  at  the  defendant's  request.  Bull  vs.  Sibbs,  8  T. 
R.  327,  328;  2  Chitty  PI.  (7th  ed.)  47  n.  1.;  (Cth  ed.)  56  n.  w. 
A  fortiori  when  it  was  to  the  defendant's  wife,  who  at  common  law 
is  one  person  with  her  husband.  Poss  vs.  Noel,  Bull.  N.  P.  136; 
Kamsden  vs.  Ambrose,  1  Stra.  127.      And  in  those  cases  where 


73  Cases  on  Agency.  [Book  1 

the  law  authorizes  a  wife  to  pledge  her  husband's  credit,  even 
against  his  will,  it  creates  a  compulsory  agency,  and  her  request  is 
his  request. 

Exceptions  overruled. 


(15  Connecticut,  347,  39  Am.  Deo.  384.) 

BENJAMIN  vs.   BENJAMIN. 

(Supreme  Court  of  Errors  of  Connecticut,  June,  ISJiS.) 

Trespass  for  cutting,  removing  and  selling  certain  grass  growing 
on  plaintifi's  land.  Defendant  justified  on  the  ground  that  the  act 
was  authorized  by  plaintiff's  wife.  Defendant  offered  evidence 
tending  to  show  that  in  1836  plaintiff  left  the  state  and  remained 
absent  until  1840;  that  he  left  his  wife  and  children  living  on  the 
farm  in  Connecticut,  on  which  the  grass  in  question  was  grown, 
making  little  provision  for  their  support,  and  that  he  wrote  to 
them  only  twice  during  his  absence;  that  he  left  some  stock  on  the 
farm;  that  he  did  not  commit  the  management  of  the  farm  to  any 
other  person  than  his  wife,  but  that  she  alone  managed  the  same 
during  his  absence,  employing  laborers,  who  were  paid  by  the 
plaintiff  on  his  return,  took  care  of  the  cattle  and  hired  them  out 
or  lent  them  at  pleasure,  cultivated  the  land,  kej)t  up  the  fences, 
etc.,  and  that  phiiiitiir  had  not  disapproved  of  any  of  her  acts  in 
that  regard  since  his  return;  that  she  agreed  that  defendant  might 
cut  and  remove  the  grass  under  an  attachment  taken  out  against 
the  plaintiff,  sell  the  same  on  execution  and  apply  the  proceeds  to 
his  debt,  for  the  reason  that  she  had  no  means  of  caring  for  the 
hay  herself.  Verdict  for  plaintiff,  and  defendant  moved  for  a  new 
trial. 

Ilungerford  and  Chapman,  for  the  motion, 

Toucey,  contra. 

Storrs,  J.:  The  justification  set  up  by  the  defendant,  for 
doing  the  acts  complained  of,  in  respect  to  the  cutting  and  carry- 
ing away  the  grass  in  question,  depends  on  the  validity  of  tbe 
authority  given  by  the  wife  of  the  plaintiff.  It  is  not  claimed  by 
the  defendant,  that  such  authority  is  valid,  by  virtue  of  the  power 
which  the  wife  has,   in  certain  cases,  to  charge  her  husband,  in 


Chap.  IV  ]  Benjamin  vs.  Benjamin.  73 

pronirement  of  necessaries  for  herself  or  the  family.  For  it  was 
not  for  the  relief  of  any  part  of  the  family,  that  she,  in  the  present 
case,  authorized  or  procured  the  defendant  to  do  the  acts  com- 
plained of,  nor  could  they,  in  any  measure,  contribute  to  that  pur- 
pose. Neither  the  grass,  nor  its  avails,  went  to  their  use;  nor  was 
the  arrangement  respecting  it,  made  with  any  such  view;  but  solely 
for  the  benefit  of  others.  Although,  therefore,  it  should  be  con- 
ceded, that  the  wife,  under  the  circumstances  claimed  to  be  proved 
by  the  defendant,  would  have  had  the  right,  if  necessary  for  the 
support  of  herself  or  the  family,  to  dispose  of  the  grass  and  apply 
the  avails  to  that  purpose;  and  that  her  husband  would  have  been 
bound  by  such  an  appropriation  of  his  property;  it  would  not  go 
to  show,  that  the  disposition  of  the  property,  in  the  present  case,  was 
valid  or  binding  on  him,  no  such  cause  existing,  and  the  disposi- 
tion being  for  no  such  purpose.  Hence  it  is  wholly  unnecessary 
to  consider  the  subject  of  the  liability  of  the  husband,  in  any  case, 
for  contracts  entered  into,  through  the  instrumentality  of  the 
wife,  for  necessaries  furnished  on  his  credit.  The  case  has  not 
been  attempted  to  be  placed  on  the  principles  applicable  to  those 
cases.  The  question  here,  therefore,  does  not  respect  the  liability 
which  the  laAV  imposes  on  the  husband,  independent  of  any  express 
assent  on  his  part,  or  notwithstanding  his  express  dissent;  but  la 
purely  one  of  agency — of  an  authority  possessed  by  the  wife,  to 
act  on  his  behalf,  in  relation  to  his  general  concerns. 

A  wife,  as  such,  has  no  original  or  inherent  power  to  make  any 
contract,  which  is  obligatory  on  her  husband.  No  such  right 
arises  from  the  marital  relation  between  them.  If,  therefore,  she 
possesses  a  power  in  any  case,  to  bind  him,  by  her  contracts  made 
on  his  behalf,  it  must  be  by  virtue  of  an  authority  derived  from 
him,  and  founded  on  his  assent — although  such  assent  may  be  pre- 
cedent or  subsequent,  and  express  or  implied;  and  this  is  the  light 
in  which  such  contracts  are  universally  viewed.  When  such  author- 
ity is  conferred,  the  relation  between  them  and  the  consequences 
of  that  relation,  are  analogous  to  those  in  the  ordinary  case  of 
principal  and  agent.  And  that  she  has  the  capacity  to  be  con- 
stituted, by  the  husband,  his  agent,  and  to  act  as  such,  equally 
with  any  other  person,  there  is  no  doubt.  In  Fitz.  N.  B.  120  G, 
the  law  is  thus  laid  down:  **  A  man  shall  be  charged  in  debt  for  the 
contract  of  his  bailiff  or  servant,  where  he  giveth  authority  unto 
the  bailiff  or  servant  to  buy  or  sell  for  him;  and  so  the  contract  of 
the  wife,  if  he  give  such  authority  to  his  wife,  otherwise  not."     In 


74  Cases  on  Agency.  [Book  I 

Manly  vs.  Scott,  1  Mod.  126,  it  is  said  by  Mr.  Justice  Hyde,  that 
"&feme  covert  can  not  bind  or  charge  her  hnsband,  by  any  contract 
made  by  her,  without  the  authority  or  assent  of  her  husband,  pre- 
cedent or  subsequent,  express  or  implied."  The  law  on  this 
subject  is  stated,  with  great  clearness  and  precision,  by  Selwyn,  in 
his  Nisi  Prius,  page  288,  where  he  treats  of  the  liability  of  the 
husband  as  to  contracts  made  by  the  wife  during  coverture.  After 
stating  that  the  relation  of  husband  and  wife  is,  in  respect  of  the 
wife's  contracts,  binding  the  husband,  analogous  to  the  relation  of 
master  and  servant,  he  says:  *' Indeed,  in  contemplation  of  law, 
the  wife  is  the  servant  of  the  husband; "  and,  after  citing  the  above 
passage  from  Fitzherbert,  he  says:  ''From  this  passage  it  appears 
that  the  husband  is  not  liable  to  his  wife's  contracts,  unless  he  has 
given  his  authority  or  assent; "  and  adds,  "it  is  incumbent,  there- 
fore, on  a  creditor,  who  brings  an  action  against  the  husband  upon 
a  contract  made  with  his  wife,  to  show,  that  the  husband  has  given 
such  assent,  or  to  lay  before  a  jury  such  circumstances  as  will 
enable  them  to  presume  that  such  assent  has  been  given;  and  in 
the  latter  case,  if  such  presumption  is  not  rebutted  by  contrary  evi- 
dence, the  jury  may  find  against  the  husband,  but  not  otherwise; 
for  the  wife  has  not  any  power  originally  to  charge  the  husband.'' 
These  principles  are  so  plainly  in  accordance  with  the  whole  current 
of  the  authorities,  that  a  reference  to  some  of  them  only  is  necessary; 
Vin.  Abr.  tit.  Baron  &  Feme,  E.  A.;  5  Pow.  on  Con.  57,  58;  Hunt 
vs.  Be  Blaquiere,  5  Bing.  550;  Rotch  vs.  Miles,  2  Conn.  638;  1  Bac. 
Abr.  489;  Ilanhj  vs.  Scott,  1  Lev.  4;  Bull.  N.  P.  136;  Korton  vs. 
Fazan,  1  Bos.  &  Pul.  227,  N.  by  Day;  Etherington  vs.  Parrot,  1 
Salk.  118;  s.  c.  2  Ld.  Raym.  1006;  Clancy  23. 

But,  although  these  principles  are  universally  acknowledged,  it  ia 
not  always  easy  to  determine  what  amounts  to  proof  of  the  hus- 
band's assent,  where  it  is  claimed  to  be  implied  merely,  as  will 
be  obvious,  by  looking  at  those  cases  especially  in  which  questions 
have  arisen  as  to  the  liability  of  the  husband  for  supplies  furnished 
to  his  wife,  when  the  husband  had  abandoned  or  deserted  her,  or 
turned  her  from  his  doors,  or  where  there  was  an  agreement  for  a 
separation  between  them,  with  an  allowance  for  her  support.  What- 
ever difiiculty  there  may  be,  in  the  present  case,  is  of  that  char- 
acter. 

In  this  case,  no  authority  to  make  the  contract,  claimed  to  be 
proved  respecting  the  hay,  was  conferred  expressly,  by  the  plaintiff 
upon  hia  wife.     This  question  of  fact  was  submitted  to  the  jury 


Cliap.  IV]  Benjamin  vs.  Benjamin.  75 

who  found,  that  he  did  not  constitute  her  his  agent  generally,  to 
manage  his  business,  nor  specially  authorize  her  to  make  the  con- 
tract in  question,  nor  subsequently  ratify  such  contract.  The 
question,  then,  and  indeed  the  only  one  made  on  the  argument,  is, 
whether,  from  the  facts  claimed  to  be  proved  by  the  defendant, 
the  law  implies  any  power  in  the  wife  of  the  plaintiff  to  make  the 
contract  in  question  in  his  behalf. 

The  defendant  claims,  in  the  first  place,  that  such  a  power  is 
implied,  because  it  is,  in  its  nature,  necessarily  incidental  to  the 
authority  conferred  on  the  plaintiff's  wife  to  take  charge  of  his 
farm,  and  manage  and  superintend  it.  It  is  a  familiar  principle  of 
the  law  of  agency,  that  every  authority  given  to  an  agent,  whether 
general  or  special,  express  or  implied,  impliedly  includes  in  it,  and 
confers  on  such  agent,  all  the  powers  which  are  necessary,  or 
proper,  or  usual  to  effectuate  the  purposes  for  which  such  authority 
was  created.  It  embraces  the  appropriate  means  to  accomplish  the 
desired  end.  This  principle  is  founded  on  the  manifest  intention 
of  the  party  conferring  such  authority,  and  is  in  furtherance  of 
such  intention.  The  rule  is  most  fully  and  minutely  illustrated, 
by  examples  and  authorities,  in  Judge  Story's  treatise  on  Agency, 
to  which  it  is  only  necessary  to  refer.  As  applicable  to  the  case 
before  us,  the  plaintiff's  wife,  on  the  ordinary  principle  of  agency, 
would  have  the  power  to  do  whatever  is  necessary  or  proper,  in  the 
care  and  management  of  the  farm  intrusted  to  her,  such  as  keeping 
in  order  the  buildings,  fences  and  implements  of  husbandry, 
cultivating  the  land,  and  preserving  the  crops,  and  perhaps  dis- 
posing of  such  crops,  if  necessary  to  enable  her  to  do  these  things; 
and  generally  to  do  whatever  is  necessary  and  proper  in  order  to 
execute  the  trust  reposed  in  her;  and  the  usual  course  of  such  an 
employment  might  be  shown,  in  order  to  ascertain  what  was  thus 
necessary  and  proper,  and  the  character  and  design  of  the  trust. 
Further  than  this,  her  power  would  not  extend. 

It  is  scarcely  necessary  to  say  that,  within  these  principles,  she 
has  no  right  to  dispose  of  her  husband's  property  in  her  possession, 
in  the  extraordinary  and  injurious  manner,  and  for  the  purpose 
claimed  to  be  proved  by  the  defendant.  If  it  should  be  held  that  such 
an  agent  might  make  such  a  contract,  it  would  be  difficult  to  stop 
short  of  investing  her  with  a  general  and  unlimited  authority  as  to 
all  his  affairs.  The  very  case  of  intrusting  another  with  the 
superintendence  of  a  farm,  is  put  in  the  books  on  the  civil  law, 
under  which  it  was  held,  that  an  agency  of  that  description  does 


76  Oases  on  Agency.  [Book  I 

not  atithorize  the  agent  to  sell  the  property  of  the  principal  for 
any  purpose,  unless  it  be  of  a  perishable  nature.  Whether  we 
should  restrict  his  powers  within  limits  so  narrow,  it  is  unnecessary 
to  inquire;  but  on  no  principle  can  we  extend  them  as  is  claimed 
in  the  present  case. 

It  is  next  claimed  by  the  defendant,  that  from  the  marital  relation 
between  the  plaintiff  and  his  wife,  the  law  implies  a  larger  authority 
than  from  the  ordinary  relation  between  principal  and  agent,  and 
that  the  power  to  make  the  contract  in  question  is  implied  from 
such  relation.     We  have  seen  that  a  wife,  by  virtue  of  such  rela- 
tion, possesses  no  original  power  to  bind  her  husband,  by  her  con- 
tracts made  on  his  behalf;    and  that  her  power  for  that  purpose 
must,  therefore,  be  derivative.     It  appears,  nevertheless,  from  the 
authorities,  that  the  law  will,  in  some  cases,  presume  the  wife  to 
be  the  agent  of  her  husband,  when  no  such  presumption  would 
exist  as  to  another  person;  and  also  will,  in  some  cases,  imply  a 
larger  authority  to  the  wife  than  to  an  ordinary  agent,  and  this, 
perhaps,  whether  the  husband  be  absent  from  home  or  not;  and 
that,  in  other  cases,  where  he  is  absent,  a  presumption  would  arise 
that  his  wife  has  authority  to  act  in  his  behalf,  which  would  not 
exist  if  he  were  at  home.     But  it  will  be  found  that  in  all  such 
cases,  these  inferences  are  founded  on  the  fact  that  it  is  usual  and 
customary  to  permit  the  wife  to  act  in  such  cases.     It  is  a  presump- 
tion arising  from  the  state  of  society.     Thus,  in  Anonymous,  1 
Stra.,  537,  "Pkatt,  C.  J.,  allowed  the  wife's  declaration  that  she 
agreed  to  pay  four  shillings  per  week,  for  nursing  a  child,  was 
good  evidence  to  charge  the  husband;  this  being  a  matter  usually 
transacted  by  the  women.''    Judge  Reeve,  in  Domestic  Relations, 
p.  79,  says:     "  The  husband  is  bound  to  fulfill  the  contract  of  his 
wife,  when  it  is  such  an  one  as  wives,  according  to  the  usage  of  the 
country,  commonly  make.     If  a  wife  should  purchase,  at  a  mer- 
chant's store,  such  articles  as  wives  in  her  rank  of  life  usually  pur- 
chase, the  husband  ought  to  be  bound,  for  it  is  a  fair  presumption 
that  she  was  authorized  so  to  do,  by  her  husband.     If,  however, 
Bhe  were  to  purchase  a  ship  or  a  yoke  of  oxen,  no  such  presumption 
would  arise,  for  wives  do  not  usually  purchase  ships  or  oxen."    On 
the  same  grounds  in  Church  vs.  Landers,  10  Wend.  79,  the  wife, 
in  the  husband's  absence,  was  presumed  to  have  been  left  an  agent 
for  the  hiring  out  of  his  horses:  2  Oow.  Ph.  on  Ev.  294,  n.  298. 
In  Spencer  vs.  Tisue,  Addis.  (Ra.)  316,  payment  to  the  wife  of  a  debt 
due  to  the  husband  in  his  absence,  was  held  good  for  the  same 


Chap.  IV]  Benjamin  vs.  Benjamin.  77 

reason.  We  do  not  find  any  adjudged  case  wliich  sanctions  the 
doctrine  that  the  wife,  whether  the  husband  is  abroad  or  at  heme, 
is  presumed  to  be  the  agent  of  her  husband  generally,  or  to  be 
entrusted  with  any  other  authority  as  to  his  affairs,  than  that 
which  it  is  usual  and  customary  to  confer  upon  the  wife.  It  would 
be  not  only  unreasonable,  and,  as  it  respects  the  husband's  interest, 
unsafe,  but  it  would  be  going  beyond  what  could  fairly  be  pre- 
sumed to  be  his  intention,  to  extend  the  powers  of  the  wife  by 
implication  or  presumption  further  than  this  principle  warrants; 
and  that  it  justifies  the  contract  in  question  cannot  be  claimed. 
We  think,  therefore,  that  the  defendant's  justification,  founded 
on  the  authority  of  the  plaintiff's  wife,  fails.     *    *     * 

New  trial  denied. 


(26  Iowa,  297.) 

MoLAEEN  vs.  HALL. 

^Supreme  Court  of  Iowa,  December,  1868.) 

Action  for  work,  labor  and  material  furnished.  The  transac- 
tions were  had  with  William  Hall  who  was  claimed  to  be  the  agent 
of  the  defendant  Sarah  G.  Hall.     Defendant  appeals. 

Roberts  &  FouTce,  for  appellant. 
Beach  &  Oray,  for  appellee. 

Cole,  J.  *  •  *  The  husband  may  act  as  agent  for  the 
wife.  In  order  to  bind  her,  however,  he  must  be  previously 
authorized  to  act  as  her  agent,  or  she  must  subsequently,  with 
express  or  implied  knowledge  of  his  act,  ratify  it.  The  evidence 
necessary  to  establish  a  ratification  by  the  wife,  of  a  contract  made 
by  her  husband  as  her  agent,  must  be  of  a  stronger  and  more  satis- 
factory character  than  that  required  to  establish  a  ratification  by 
the  husband  of  the  act  of  the  wife  as  his  agent,  or  than  as  between 
independent  parties.  And  this  for  the  reason  that  (in  the  general 
experience  of  the  past  at  least,  if  not  in  the  philosophy  of  the  present), 
the  wife  is  under  the  control  of,  and  subordinate  to,  the  husband;  and 
neither  good  law  nor  sound  reason  will  require  the  wife  to  destroy 
the  peace  of  her  family  and  endanger  the  marriage  relation  by  open 
repudiation  or  hostile  conduct  towards  her  husband,  in  order  to 
save  her  property  from  liability  for  his  unauthorized  contracts. 


78  Oases  on"  Ageistct.  [Book  I 

Of  conrse  it  is  necessary  in  every  case,  in  order  to  bind  her,  that  he 
should  at  least  claim  to  act  as  her  agent;  and  her  ratification  should 
be  shown  by  those  unmistakable  acts  or  declarations  which  evince 
a  knowledge  of  the  contract  by  which  she  is  sought  to  be  bound, 
and  an  intention  to  adopt  or  ratify  it  as  her  own,       *      •      » 

Note — Hvisband  has  no  implied  authority  to  act  as  agent  for  his  wife. 
Price  vs.  Seydel,  46  Iowa,  69G;  Crawford  vs.  Redus,  54  Miss.  700;  Eystra  vs. 
Capelle,  61  Mo.  580;  Mead  vs.  Spalding,  94  Mo.  43;  Etheridge  vs.  Price,  73 
Tex.  597.  With  her  authority,  however,  he  may  act  as  her  agent.  Rankin 
vs.  West,  25  Mich.  195;  Arnold  vs.  Spurr,  130  Mass.  347;  Lavassar  vs. 
Washburne,  50  Wis.  200;  GriJJin  vs.  Ransdell,  71  Ind.  440;  Bennett  vs. 
Stout,  98  111.  47. 


(40  New  Hampshire,  197,  77  Am.  Deo.  706.) 

JOHNSON  vs.  STONE. 

^Supreme  Judicial  Court  of  New  Hampshire,  January,  1860.) 

Trespass  for  taking  and  carrying  away  the  plaintiff's  yoke. 
Defense,  inter  alia,  permission  from  plaintiff's  son.  The  court 
instructed  the  jury  that  the  son  would  have  no  authority  to  lend 
the  yoke  unless  his  father  had  authorized  or  ratified  it. 

Burns  and  Fletcher,  for  plaintiff. 
Benton  and  Ray,  for  defendant. 

Bell,  C.  J.  ♦  *  *  The  charge,  as  to  the  supposed  per- 
mission given  by  the  boy  to  the  officer  to  take  the  yoke,  was  correct. 
A  son  has  no  authority  as  such  to  lend  his  father's  property,  and 
there  is  no  presumption  that  such  authority  has  been  given  to  a  son. 
It  may  be  shown  that  authority  to  lend  tools  and  the  like  has  been 
given  to  a  son  expressly,  or  such  an  authority  may  be  inferred  from 
the  conduct  of  the  father,  tending  to  show  that  he  reposed  such  con- 
fidence and  intrusted  such  discretion  to  the  son,  as  by  showing  that  on 
other  occasions  the  son  had  lent  the  father's  property  of  a  similar 
kind,  and  the  father,  upon  the  facts  coming  to  his  knowledge, 
approved  what  he  had  done;  but  without  such  proof  the  son  stands 
in  the  same  position  as  a  stranger.     •     •    • 

NOTB — See  following  case. 


Chap.  IV  ]  Bennett  vs.  Gillette.  79 

(3  Minnesota,  423;  74  Am.  Deo.  774.) 

BENNETT  V3.   GILLETTE. 
(Supreme  Court  of  Minnesota,  December,  1S59.) 

Plaintiff's  son  had  driven  his  horses  and  carriage  into  town  to 
bring  home  the  plaintiff's  daughter  Leodora.  The  son  hitched 
the  horses  in  front  of  the  house  where  his  sister  was  and  left  them 
there  while  he  went  to  attend  to  some  other  matters.  While  he 
was  gone,  plaintiff's  daughter,  who  was  about  19  years  of  age, 
requested  defendant,  a  friend  of  hers,  to  drive  herself  and  a  lady 
friend  to  a  church.  Defendant  assented,  and  while  driving,  the 
horses  became  frightened,  ran  away,  threw  out  the  occupants  of 
the  carriage,  demolished  the  carriage  and  killed  themselves.  The 
father  brought  this  action  against  the  defendant  to  recover  for  the 
loss.     Defendant  had  judgment  below. 

Sanborn,  French  and  Lund,  for  appellant. 

Brislin  and  Bigelow,  for  respondent. 

Flandrau,  J.  (After  stating  the  facts.)  The  relation  of 
parent  and  child,  existing  between  the  plaintiff  and  Leodora  Ben- 
nett, conferred  upon  her  the  right  to  use  in  a  careful  and  proper 
manner,  such  property  of  her  father  as  was  customarily  applicable 
to  family  purposes;  as,  for  instance,  the  furniture  of  his  house, 
and  we  think,  the  family  carriage  and  horses,  subject,  of  course, 
to  those  regulations  which  parental  wisdom  should  dictate,  and 
parental  authority  enforce.  Where  one  person  uses  the  property 
of  another  who  is  as  to  him  a  stranger,  the  law  implies  a  promise 
to  pay  an  equivalent  for  its  use.  Yet,  where  members  of  the  same 
family  do  the  same  thing  in  the  ordinary  intercourse  of  life,  no 
such  implication  will  follow,  but  if  an  action  can  be  sustained  at 
all,  an  express  promise  must  be  averred  and  proved.  In  the  same 
way,  where  one  person  performs  work,  labor,  or  services  for  another, 
with  his  knowledge  and  assent,  the  law  will  imply  a  promise  to 
pay  a  fair  remuneration  for  the  benefit  received,  whereas  no  such 
presumption  will  arise  between  members  of  the  same  family  in 
similar  cases,  and  under  similar  circumstances.  Can  there  be  any 
doubt  that  the  child  may  use  the  books  in  the  father's  library, 
hunt  with  his  gun  and  dogs,  sail  in  his  yacht,  and  even  invite  a 
friend  to  participate  with  him  in  these  pursuits  or  amusements? 


80  Cases  on  Agency.  [Book  I 

We  think  not.  The  law  of  the  land  imposes  the  obligation  upon 
the  parent  to  furnish  the  child  with  the  necessaries  of  life;  and 
the  law  of  nature  prompts  him  to  supply  those  comforts  and  lux- 
uries compatible  with  his  social  position,  which  will  refine  and  ele- 
vate his  mind,  improve  and  develop  his  body,  and  fit  him  to  assume 
the  responsibilties  and  duties  of  the  citizen.  When  a  parent 
famishes  an  establishment  for  his  family,  the  law  will  presume  an 
authority  in  the  several  members  thereof  to  enjoy  it,  and  refer 
all  questions  concerning  the  internal  policy  of  the  domestic  circle 
to  the  arbitrament  of  the  social  code,  so  long  as  its  differences  do 
not  trench  upon  the  rights  of  others. 

In  this  case  we  cannot  see  how  there  was  any  impropriety  in  the 
daughter  of  the  plaintiff  using  the  carriage  which  had  been  sent  into 
the  city  for  her  for  any  of  the  general  purposes  which  such  property 
is  devoted  to  in  families,  either  in  conveying  her  to  a  friend's,  or  to 
church,  as  in  this  instance;  nor  do  we  think  she  exceeded  the  limits 
of  a  prudent  exercise  of  her  privileges,  by  extending  them  to  her 
friends  who  were  present.  She  certainly  did  not  by  so  doing  vio- 
late any  known  law  of  courtesy,  but  we  think  exhibited  a  degree  of 
forethought  and  prudence  in  securing  the  services  of  the  defendant 
to  drive  the  horses,  which  was  commendable  to  her  judgment.  We 
do  not  think  the  defendant  can  be  said  to  have  taken  the  property 
at  all,  or  to  have  had  it  under  his  control,  or  in  his  custody, 
or  possession,  but  he  was  simply  a  passenger  at  the  invitation  of 
the  plaintiff's  daughter,  who  had  competent  and  adequate  author- 
ity, by  virtue  of  her  relation  to  the  plaintiff,  to  use  the  carriage 
and  horses  for  the  purpose  to  which  they  were  being  applied. 

The  case  does  not  make  out  any  negligence  on  the  part  of  the 
defendant  in  the  manner  in  which  he  drove  or  otherwise,  and  wo 
see  no  principle  upon  which  he  can  be  made  liable  for  the  loss  the 
plaintiff  has  sustained.  It  is  one  of  those  unfortunate  accidents  for 
which  the  law  furnishes  no  redress. 

The  judgment  of  the  court  below  is  aflBrmed. 

Note — See  further  on  authority  of  child  to  act  as  agent  for  the  parents; 
Sequin  vs.  Peterson,  45  Vt.  225,  12  Am.  Rep.  194;  Bumham  vs.  Holt,  14  N. 
H.  367;  Hall  v$.  Harper,  17  111.  82;  Swartwout  vs.  Evans,  37  111.  442;  Paul 
V8.  Hummell,  43  Mo.  122;  Owen  vs.  White,  5  Port.  (Ala.)  435,  80  Am.  Doc 

57ia. 


Chap.  IV  ]  Pole  vs.  Lease.  81 

II. 

AUTHOmTT   CONFERRED   BY    ACT   OP   PARTIES. 


(33  Law  Journal  Reports,  Eq.  155.) 

POLE  vs.  LEASK. 

^English  House  of  Lords,  April,  ISGS.J 

Lord  Cranworth.  My  lords,  before  I  examine  in  detail  the 
facts  of  this  case,  I  desire  to  advert  very  shortly  to  one  or  two  gen- 
eral propositions  connected  with  the  law  of  agency,  which,  I  think, 
were  sometimes  lost  sight  of  in  the  argument  of  this  case  at  your 
lordships'  bar.  First,  then,  as  to  the  constitution  by  the  principal 
of  another  to  act  as  his  agent.  No  one  can  become  the  agent  of 
another  person  except  by  the  will  of  that  other  person.  His  will 
may  be  manifested  in  writing  or  orally,  or  simply  by  placing 
another  in  a  situation  in  which,  according  to  ordinary  rules  of  law, 
or  perhaps  it  would  be  more  correct  to  say,  according  to  the  ordi- 
nary usages  of  mankind,  that  other  is  understood  to  represent  and 
act  for  the  person  who  has  so  placed  him;  but,  in  every  case,  it  ia 
only  by  the  will  of  the  employer  that  an  agency  can  be  created. 

This  proposition,  however,  is  not  at  variance  with  the  doctrine, 
that  where  one  has  so  acted  as  from  his  conduct  to  lead  another  to 
believe  that  he  has  appointed  some  one  to  act  as  his  agent,  and 
knows  that  that  other  person  is  about  to  act  on  that  behalf,  then, 
unless  he  interposes,  he  will,  in  general,  be  estopped  from  disputing 
the  agency,  though  in  fact  no  agency  really  existed.  It  is,  how- 
ever, necessary  to  bear  in  mind  the  difference  between  this  agency 
by  estoppel,  if  I  may  so  designate  it,  and  a  real  agency,  however 
constituted. 

Another  proposition  to  be  kept  constantly  in  view  is,  that  the 
burden  of  proof  is  on  the  person  dealing  with  any  one  as  an  agent, 
through  whom  he  seeks  to  charge  another  as  principal.  He  must 
show  that  the  agency  did  exist,  and  that  the  agent  had  the  authority 
he  assumed  to  exercise,  or  otherwise  that  the  principal  is  estopped 
from  disputing  it. 

Unless  this  principle  is  strictly  acted  on,  great  injustice  may  be 
the  consequence;  for,  any  one  dealing  with  a  person  assuming  to 
6 


82  Cases  on  Agei,"ot.  [Book  I 

act  as  agent  for  another,  can  always  save  himself  from  loss  or  diffi- 
culty by  applying  to  the  alleged  principal  to  learn  whether  the 
agency  does  exist,  and  to  what  extent.  The  alleged  principal  has 
no  similar  mode  of  protecting  his  interests;  he  may  be  ignorant  of 
the  fact  that  any  one  is  assuming  to  act  for  him,  or  that  persons 
are  proposing  to  deal  with  another  under  the  notion  that  that  other 
is  his  agent.  It  is,  therefore,  important  to  recollect  constantly 
where  the  burden  of  proof  lies.     ♦    •    • 


(38  Minnesota,  66.) 

GRAVES  vs.  HORTON. 

^Supreme  Court  of  Minnesota,  December,  1887.  J 

Smith  <&  Reed,  for  appellant. 
C,  H.  Childs,  for  defendant. 

Mitchell,  J.  This  action  was  brought  to  recover  the  value  of 
certain  property,  which  plaintiff  had  exchanged  with  defendant  for 
a  skating  rink,  skates,  boats,  etc.,  situated  at  Spirit  Lake,  Iowa. 
Plaintiff's  claim  is  that  there  was  an  entire  failure  of  title  to  this 
(latter)  property,  because  defendant  had  previously  sold  it  to  one 
McCurdy.  It  is  not  claimed  that  defendant  had  personally  sold  it  to 
McCurdy,  whatever  was  done  in  that  regard  having  been  done  by  one 
F.  M.  Horton,  assuming  to  act  as  her  agent.  Hence,  unless  F.  M. 
Horton  had  authority  as  defendant's  agent  to  sell  to  McCurdy, 
there  could  have  been  no  such  sale,  and  plaintiff  has  no  cause  of 
action.     The  burden  was  on  plaintiff  to  prove  such  agency. 

It  is  axiomatic  in  the  law  of  agency  that  no  one  can  become  the 
agent  of  another  except  by  the  will  of  the  principal,  either 
expressed  or  implied  from  particular  circumstances;  that  an  agent 
cannot  create  in  himself  an  authority  to  do  a  particular  act  by  its 
performance,  and  that  the  authority  of  an  agent  cannot  be  proved 
by  his  own  statement  that  he  is  such.  Applying  these  elementary 
principles,  and  stripping  the  evidence  of  all  that  is  immaterial  or 
incompetent,  and  giving  to  what  remains  all  the  force  that  can  be 
claimed  for  it,  all  there  is  that  was  brought  home  to  defendant 
tending  to  prove  any  such  agency  is  that,  when  F.  M.  Horton  wai 


Chap.  IV]  Graves  vs.  IIoetoit.  83 

in  Spirit  Late,  he  transmitted  and  submitted  to  her  in  Minneapolis 
what  purported  to  be  a  proposition  from  McCurdy  to  give  for  this 
property  11,090  in  goods,  and  assume  a  mort^^age  on  it  for  |!385, 
and  that  she  agreed  to  accept  this  proposition;  that  McCurdy  being 
unable  to  carry  this  out,  F.  M.  Horton  submitted  to  her  another 
proposition  as  coming  from  McCurdy,  viz.,  to  give  in  place  of  the 
goods  80  acres  of  land  in  Iowa;  that  defendant  declined  to  accept 
this  last  proposition,  and  eo  notified  McCurdy;  that  about  two 
weeks  after  this  she  apthorized  F.  M.  Horton  to  negotiate  the 
sale  of  this  property  to  plaintiff  on  the  terms  which  were  finally 
agreed  on,  she  herself  making  the  transfer  by  executing  the  bill  of 
sale  described  in  the  complaint.  We  have,  on  the  other  hand,  the 
flat  denials  of  both  defendant  and  F.  M.  Horton  that  he  ever  had 
any  authority  from  her  to  sell  this  property  or  ever  was  her  agent 
for  this  or  any  other  purpose. 

This  is  really  all  the  competent  evidence  there  is  at  all  bearing 
upon  this  question  of  agency.  The  acceptance  of  McCurdy's  first 
proposition,  which  he  was  unable  to  carry  out,  certainly  does  not 
tend  to  prove  authority  to  F.  M.  Horton  to  sell  on  the  terms 
of  the  second,  which  defendant  expressly  declined  to  accept; 
and  if  any  sale  ever  was  made  to  McCurdy,  it  was  on  the  basis  of 
this  last  proposition.  Hence  the  evidence  of  agency  is  reduced 
down  to  the  fact  that  defendant  authorized  F.  M.  Horton  to  nego- 
tiate the  sale  to  plaintiff,  which  she  herself  consummated  by  the 
execution  of  a  bill  of  sale.  It  certainly  cannot  be  that  this  is 
BuflScient.  It  is  true  that  agency  may  be  proved  from  the  habit 
and  course  of  dealing  between  the  parties;  that  is,  if  one  has 
usually  or  frequently  employed  another  to  do  certain  acts  for  him, 
or  has  usually  ratified  such  acts  when  done  by  him,  such  person 
becomes  his  implied  agent  to  do  sucli  acts,  as,  for  example,  the  case 
of  the  manager  of  a  plantation  in  buying  supplies  for  it,  or 
the  superintendent  of  a  saw-mill,  in  making  contracts  for  put- 
ting in  logs  for  the  use  of  the  mill,  which  are  the  cases  cited  by 
respondent.  It  is  also  true,  as  was  said  in  Wilcox  vs.  Chicago, 
Ml.  &  St.  Paul  R.  Co.,  24  Minn.  2G9  (which  involved  the  ques- 
tion  of  the  authority  of  the  person  to  whom  goods  were  delivered 
to  receive  them),  that  a  single  act  of  an  assumed  agent,  and  a 
single  recognition  of  it,  may  be  of  so  unequivocal  and  of  so  posi- 
tive and  comprehensive  a  character  as  to  place  the  authority  of  the 
agent  to  do  similar  acts  for  the  principal  beyond  question.  It  is 
also  true  that  the  performance  of  subsequent  as  well  as  prior  acts. 


84  Cases  02^"  Agexcy.  [  Book  I 

authorized  or  ratified  by  the  principal,  may  be  evidence  of  agency, 
where  the  acts  are  of  a  similar  kind,  and  related  to  a  continuous 
series  of  acts  embracing  the  time  of  the  act  in  controversy,  as  indi- 
cating a  general  habit  and  course  of  dealing;  as,  for  example,  the 
acts  of  the  president  of  a  railway  company  in  making  drafts  in  the 
name  of  the  company,  which  were  honored  by  it,  which  was  the 
case  of  Olcott  vs.  Tioga  E.  Co.,  27  N.  Y.  64G;  Si  Am.  Dec. 
298,  cited  by  counsel.  But  we  think  the  books  will  be  searched  in 
vain  for  a  case  where  it  was  ever  held  that  authority  to  negotiate 
for  the  sale  of  property  to  one  person  at  one  time,  on  certain  terms, 
the  transfer  to  be  made  by  the  principal  in  person,  was  evidence  of 
authority  to  sell  and  transfer  the  same  property  at  some  former 
time  to  another  person  on  different  terms.  A  new  trial,  would, 
however,  have  to  be  granted  on  the  ground  of  error  in  the 
admission  of  evidence.  The  general  statement  of  the  witness 
McCurdy  that  Frank  M.  Horton  did  quite  an  extensive  business  at 
Spirit  Lake  trading  in  real  estate,  and  frequently  bought  and  sold 
in  the  name  of  Jennie  L.  Horton  and  Carolina  W.  Horton,  with- 
out identifying  the  transactions,  or  describing  them,  or  in  any  way 
bringing  them  home  to  the  notice  or  knowledge  of  defendant,  was 
inadmissible  to  prove  agency.  The  court  also  erred  in  allowing  the 
same  witness  to  testify  that  F.  M.  Horton  was  publicly  and  gener- 
ally known  at  Spirit  Lake  as  the  agent  of  Jennie  L.  Horton. 
Agency  cannot  be  proved  by  general  reputation. 
Judgment  reversed,  and  new  trial  ordered. 


(115  Missouiii  513,  22  S.  W.  Eep.  492.) 

JOHNSON  vs.    HURLEY. 

fSupreme  Court  of  Missouri,  Division  No.  1.    May  8,  1S9S.J 

Action  by  John  M.  Johnson  and  another  against  John  M.  Hurley 
to  recover  the  possession  of  lands. 

The  answer  set  up  an  equitable  defense,  to  the  effect  that  defend- 
ant had  purchased  the  land  from  the  duly-authorized  agent  of  the 
plaintiffs,  had  received  from  said  agent  deeds  purporting  to  be 
duly  executed  and  acknowledged  by  plaintiffs,  and  purporting  to 
convey  to  him  said  lands;  that  he  had  paid  to  said  agent  the  entire 
purchase  price  for  the  land,  to  wit,  ^1,650,  its  fair  value,  and  had 
been  put  in  possession  under  his  said  purchase;  that  he  had,  in  good 


Chap.  IV  ]  Johnson  vs.  Hurley.  85 

faith,  fenced  Baid  land,  and  erected  thereon  a  dwelling  honse  and 
other  valuable  and  permanent  buildings  and  improvements, — and 
prayed  specific  performance.  The  reply  denied  the  new  matter  of 
the  answer.  The  evidence  showed  that  the  deeds  were  forged  by 
plaintiffs*  agent,  Finley  A.  Johnson,  who  received  the  money  and 
absconded.  The  cause  was  tried  as  a  suit  in  equity  for  specific 
performance  of  a  contract  for  the  conveyance  of  land,  and  a  decree 
entered  for  defendant  according  to  the  prayer  of  the  answer,  and 
plaintiffs  appealed. 

Harrison  and  Mahan,  for  appellants. 

Geo.  W.  Whitecotton  and  Jas.  P.  Wood,  for  respondent. 

Macfarlane,  J.     (After  stating  the  facts): 

1.  The  evidence  leaves  no  doubt  that  plaintiffs*  agent  made  the 
contracts  with  defendant  for  the  sale  of  the  land,  assuming  to  act 
for  them;  that  he  received  the  purchase  money,  delivered  a  deed,  to 
which  their  names  were  signed,  and  to  which  an  acknowledgment 
certified  in  due  form  by  the  said  agent  as  notary  public  was  attached; 
and  that  under  said  transaction,  and  relying  on  it,  defendant,  in 
good  faith,  went  into  the  possession  and  made  valuable  and  lasting 
improvements.  Under  these  circumstances,  if  said  agent  was 
authorized  to  make  the  sale,  it  would  be  the  grossest  injustice  and 
fi-aud  on  defendant  to  deny  him  the  benefit  of  the  contract  for  the 
reason  that  it  was  not  in  writing,  as  required  by  the  statute  of 
frauds.  To  prevent  such  injustice  courts  of  equity  have  uniformly 
held  that  such  part  performance  relieves  the  contract  of  the  infirm- 
ity created  by  the  statute,  and  specific  performance  will  not  be 
denied.  Emmel  vs.  Hayes,  102  Mo.  193;  Bowles  vs.  Wathan,  54 
Mo.  264. 

2.  The  question  then  is  whether  Finley  A.  Johnson  had  author- 
ity from  plaintiffs  to  make  a  sale  of  these  lands.  It  may  be 
stated,  in  the  first  place,  as  a  general  rule,  that  an  agent  can  only 
act  within  the  circumscribed  authority  given  him  by  his  jirincipal, 
and  ono  who  deals  with  him  is  put  upon  his  guard  by  the  very  fact 
that  he  is  dealing  with  an  agent,  and  he  must  ascertain  for  himself 
the  nature  and  extent  of  his  authority.  The  burden  is,  therefore, 
always  cast  upon  one  claiming  the  benefit  of  a  contract  made  with 
another  who  assumes  to  act  as  the  agent  of  a  third  person  to  estab- 
lish by  satisfactory  evidence  that  the  contract  relied  upon  was 
within  the  scope  of  the  agent's  authority.  Mcchem,  Ag.  §§  276- 
289,  and  cases  cited. 


86  Cases  ojh  AoEifCY.  [Book  I 

3.  The  evidence,  we  think,  fails  to  establish  an  express  authority 
from  the  plaintiffs  to  the  said  Finley  A.  Johnson  to  conclude  con- 
tracts for  the  sale  of  these  Missouri  lands,  or  to  make  the  particular 
contract  in  question.  Both  of  them,  in  testifying  in  the  case,  very 
emphatically  deny  such  authority,  and  no  evidence  was  introduced 
by  defendant  showing  directly  that  any  was  given.  The  authority, 
then,  if  any  existed,  must  be  implied  or  presumed  from  the  con- 
duct of  the  parties.  The  general  rule,  which  accords  with  the 
decisions  in  this  State,  is  given  by  Mechem,  in  his  work  on  Agency 
(section  84),  as  follows:  ''It  may  therefore  be  stated  as  a  general  rule 
that  whenever  a  person  has  held  out  another  as  his  agent  authorized 
to  act  for  him  in  a  given  capacity,  or  has  knowingly  and  without 
dissent  permitted  such  other  to  act  as  his  agent  in  such  capacity, 
or  where  his  habits  and  course  of  dealing  have  been  such  as  to  rea- 
sonably warrant  the  presumption  that  such  other  was  his  agent, 
authorized  to  act  in  that  capacity,  whether  it  be  in  a  single  trans- 
action or  in  a  series  of  transactions,  his  authority  to  such  other  to 
act  for  him  in  that  capacity  will  be  conclusively  presumed,  so  far 
as  it  may  be  necessary  to  protect  the  rights  of  third  persons  who 
have  relied  thereon  in  good  faith,  and  in  the  exercise  of  reasonable 
prudence;  and  he  will  not  be  permitted  to  deny  that  such  other 
was  his  agent,  authorized  to  do  the  act  that  he  assumed  to  do,  pro- 
vided that  such  act  is  within  the  real  or  apparent  scope  of  the  pre- 
sumed authority."  Jiice  vs.  Groffmayui,  5G  Mo.  434;  SummervilU 
vs.  Railroad  Co.,  62  Mo.  391.  We  are  of  the  opinion  that  author- 
ity to  make  these  sales  is  clearly  implied  from  the  conduct  of  the 
parties.  One  of  the  owners  of  the  land,  a  preacher,  lived  in  the 
state  of  Illinois;  the  other  two,  unmarried  ladies,  lived  in  the  state 
of  New  Jersey.  So  far  as  appears,  no  one  of  them  ever  visited  the 
land  or  gave  any  personal  attention  to  it.  From  1868  to  1883,  it 
was  in  the  hands  of  agents  for  sale.  For  most  of  this  time  the  said 
Finley  A.  Johnson,  a  son  of  one  of  the  owners,  and  a  nephew  of 
the  other  two,  a  lawyer,  a  notary  public,  and  a  judge  of  a  court, 
who  lived  in  the  state  of  New  Jersey,  was  one  of  the  agents.  The 
acknowledgment  of  deeds  was  made  before  him;  he  paid  taxes;  he 
delivered  deeds  to  purchasers;  he  collected  purchase  money,  and 
took  notes  and  deeds  of  trust  in  his  own  name  for  deferred  pay- 
ments; he  removed  other  local  agents  and  made  settlements  with 
them, — he  was,  in  fact,  for  years  the  medium  through  whom  all 
the  business  was  transacted.       ♦       •       • 

The  manner  in  which  this  business  was  transacted  through  this 


Chap.  IV  ]  Johnson  va.  Hurley.  87 

agent  for  10  or  more  years  was  known  in  the  community  and  to 
defendant.  All  inquiries  in  regard  to  the  land  were  made  of  this 
agent;  prices  were  given  by  him;  purchase  money  paid  to  and 
deeds  received  from  him;  lands  leased  and  rents  collected  by  him,— 
and  all  under  express  authority.  There  was  also  evidence  that  a 
former  agent,  the  one  removed  by  Finley  A.,  made  sales  and  exe- 
cuted contracts  upon  which  plaintiils  afterwards  made  deeds. 
That  agent  was  removed  for  withholding  money,  and  Finley  A. 
was  appointed,  with  express  authority  to  collect  purchase  money. 
Why  this  agent,  with  all  these  express  powers,  should  have  been 
restricted  only  in  the  matter  of  making  sales,  is  not  explained  by 
the  evidence.  We  think  the  conduct  of  plaintiffs  in  the  transac- 
tion of  this  business  such  as  would  reasonably  have  induced  defend- 
ant to  believe  that  the  agent  with  whom  he  dealt  had  authority  to 
make  the  sales,  and  after  having  acted  upon  that  belief,  paid  the 
purchase  price,  and  expended  large  sums  in  improvements,  plaint- 
iffs will  not  now  be  heard  to  dispute  the  authority. 

We  are  well  satisfied  with  the  conclusions  reached  by  the  circuit 
judge,  and  affirm  the  judgment. 


(120  New  York,  274.) 

CEANE  vs.   GRUENEWALD. 

(New  York  Court  of  Appeals,  April,  1890.) 

Action  for  the  foreclosure  of  a  mortgage.  Mrs.  Crane,  through 
an  attorney  named  Baker,  loaned  defendant  $8,000  on  bond  and 
mortgage,  for  five  years,  from  December  2,  1875,  with  interest 
annually  at  seven  per  cent.  The  papers  were  left  in  Baker's  pos- 
eession,  and  he  was  authorized  to  collect  the  interest  but  not  the 
principal.  After  the  principal  became  due.  Baker  received  from 
the  defendant  two  payments  of  $1,000  each  to  apply  on  the  prin- 
cipal, the  bond  and  mortgage  being  each  time  produced  by  Baker. 
On  a  subsequent  occasion  $1,000  more  was  paid  to  Baker  to  apply 
on  the  principal,  but  the  bond  and  mortgage  were  not  produced, 
though  Baker  then  had  them  in  his  possession  and  told  the  defend- 
ant so.  Baker  then  sold  the  bond  and  mortgage,  and  forged  an 
assignment  of  them  to  the  purchaser.  After  that  Baker  received 
from  defendant  the  balance  due  upon  the  mortgage.     The  trial 


88  Cases  on  Agency.  [Book  I 

conrt  held  that  defendant  was  entitled  to  credit  for  the  first  two 
pa^'ments  of  81,000  each,  but  for  no  more,  and  rendered  judgment 
of  foreclosure  and  sale  for  the  remaining  $6,000  and  interest. 
Defendant  appealed. 

Gibson  Putzel,  for  appellant. 
Josejrh  F.  Stier,  for  respondent. 

Parker,  J.  A  mortgagor  who  makes  a  payment  to  one,  other 
than  the  mortgagee,  does  so  at  his  peril.  If  the  payment  be  denied, 
upon  him  rests  the  burden  of  proving  that  it  was  paid  to  one 
clothed  with  authority  to  receive  it.  There  is,  however,  one 
exception  to  this  general  rule.  If  payment  be  made  to  one  having 
apparent  authority  to  receive  the  money,  it  will  be  treated  as  if 
actual  authority  had  been  given  for  its  receipt.  (Paley  on  Agency, 
3d  ed.,  275;  Story  on  Agency,  sec,  98;  Williams  vs.  Walker,  2 
Sandf.  Ch.  325;  Sinith  vs.  Kidd,  68  N.  Y.  130;  23  Am.  Eep.  157; 
Brewster  vs.  Games,  103  Id.  556-5G4.) 

So,  if  a  mortgagee  permits  an  attorney,  who  negotiates  a  loan,  to 
retain  in  his  possession  the  bond  and  mortgage  after  the  principal 
is  due,  and  the  mortgagor,  with  knowledge  of  that  fact,  and  relying 
upon  the  apparent  authority  thus  afforded,  shall  make  a  payment 
to  him,  the  owner  will  not  be  permitted  to  deny  that  the  attorney 
possessed  the  authority  which  the  presence  of  the  securities  indi- 
cated that  he  had.  This  rule  comprises  tv;o  elements:  First, 
possession  of  the  securities  by  the  attorney  with  the  consent  of  the 
mortgagee;  and  second,  knowledge  of  such  possession  on  the  part 
of  the  mortgagor.  The  mere  possession  of  the  securities  by  the 
attorney  is  not  sufficient.  The  mortgagor  must  have  knowledge 
of  the  fact.  It  would  not  avail  him  to  prove  that  subsequent  to  a 
payment  he  discovered  that  the  securities  were  in  the  actual 
custody  of  the  attorney  when  it  was  made.  For  he  could  not  have 
been  misled  or  deceived  by  a  fact,  the  existence  of  which  was 
unknown  to  him.  It  is  the  information  which  he  acquires  of  the 
possession  which  apprises  him  that  the  attorney  has  apparent 
authority  to  act  for  the  principal.  It  is  the  ajjpearance  of 
authority  to  collect,  furnished  by  the  custody  of  the  securities, 
which  justifies  him  in  making  payment.  And  it  is  because  the 
mort.  agor  acts  in  reliance  upon  such  appearance,  an  appearance 
made  possible  only  by  the  act  of  the  mortgagee  in  leaving  the 
eecurities  in  the  hands  of  an  attorney  that  estops  the  owner  from 


Chap.  IV]  Crane  vs.  Gkuenewald.  89 

denying  the  existence  of  authority  in  the  attorney  which  such 
possession  indicates. 

Now,  applying  that  rule  to  the  facts  found  by  the  learned  trial 
court  in  this  case,  the  attorney  Baker  negotiated  the  loan  of  $8,000, 
which  was  made  to  this  defendant  on  his  bond  secured  by  a  mort- 
gage on  real  estate.  The  mortgagor  and  mortgagee  never  saw  each 
other.  The  securities  were  permitted  to  remain  in  the  possession 
of  the  attorney.  He  had  authority  to  collect  the  interest,  but  was 
not  authorized  to  collect  the  principal  or  any  part  of  it.  After  the 
principal  became  due  he  received  from  the  mortgagor  two  payments 
of  $1,000  each,  on  each  occasion  exhibiting  the  bond  and  mortgage 
to  the  mortgagor.  Clearly  as  to  these  two  items  the  attorney  had 
apparent  authority  to  receive  the  principal  and  the  mortgagor  could 
not  deny  to  them  the  effect  of  payment ^ro  ianio  by  proof  that  he 
did  not  have  actual  authority.  Subsequently,  and  while  the  bond 
and  mortgage  still  remained  in  the  possession  of  the  attorney,  this 
defendant  paid  to  him  a  further  sum  of  $1,000,  to  be  applied  as  a 
payment  on  account  of  the  principal  due.  True,  he  did  not  at 
this  time  see  the  bond  and  mortgage,  but  it  was  actually  in  the  pos- 
session of  the  attorney  and  the  attorney  so  informed  him.  Here 
then  was  possession  and  information  of  the  possession.  It  was 
information  upon  which  he  acted,  and  inasmuch  as  it  was  true,  it 
constituted  apparent  authority.  If  it  had  turned  out  to  be  untrue 
it  could  not  have  availed  the  defendant.  We  see  no  ground  for 
insisting  that  a  party  must  actually  see  and  examine  the  securities 
in  order  to  entitle  him  to  the  protection  of  the  doctrine  of  apparent 
authority;  if  he  have  trustworthy  information  of  the  fact  which  he 
believes  and  relies  upon  and  it  shall  prove  to  be  true,  there  seems  to 
be  no  reason  why  it  should  not  avail  him  as  well  as  a  personal 
examination  of  the  securities.  It  follows,  that  the  defendant  should 
have  been  credited  with  the  third  payment  of  11,000.  The 
remaining  $5,000,  was  paid  to  Baker  after  he  had  parted  with  the 
possession  of  the  bond  and  mortgage  and  the  question  presented  is, 
whether  the  defendant  is  entitled  to  be  credited  with  the  payments 
made  by  him  while  the  attorney  Baker  did  not  have  actual  posses- 
sion of  the  securities.  It  will  be  observed  that  Baker  was  not  deprived 
of  the  possession  by  any  act  of  Mrs.  Crane.  She  believed  that 
they  were  still  in  the  custody  of  Baker.  So  far  as  she  is  concerned, 
therefore,  or  the  plaintiff  in  this  action  who  occupies  no  better  or 
other  attitude,  she  is  not  in  position  to  deny  such  responsibility  as 
her  conduct  imposes.     She  cannot  say  that  bj  any  act  of  hers  she 


90  Cases  on  Agency.  [  Book  I 

is  relieved  from  the  operation  of  the  estoppel  which  prevents  her 
from  denying  that  the  first  three  payments  of  $1,000  each  were 
effectual  as  such.  If  then  the  defendant  is  not  entitled  to  he 
credited  with  the  payments  aggregating  $5,000,  it  is  because  he  is 
not  in  a  situation  to  insist  upon  the  estoppel.  We  are  of  the 
opinion  that  a  proper  application  of  this  doctrine  of  apparent 
authority,  requires  us  to  hold  that  the  defendant's  failure  to  take 
the  precaution  of  ascertaining  whether  the  attorney  was  actually 
in  the  possession  of  the  securities  when  he  paid  the  several  sums 
aggregating  05,000,  deprives  him  of  the  right  to  assert  that  he 
was  induced  to  make  the  payments  because  it  appeared  to  him  that 
the  attorney  had  the  right  to  receive  the  money.  For,  as  we  have 
already  observed,  it  cannot  appear  to  the  mortgagor  that  an 
attorney  has  authority  to  receive  the  principal,  save  where  he  has 
present  possession  of  the  securities. 

Information  of  the  physical  fact  of  possession  by  the  attorney  is 
alone  effectual  for  protection.  And  he  must  have  such  knowledge 
when  every  payment  is  made,  for  no  presumption  of  a  continuance 
of  possession  can  be  indulged  in  for  the  purpose  of  giving  support 
to  an  apparent  authority  on  the  part  of  an  attorney  to  act,  where 
no  actual  authority  exists.  This  knowledge  he  did  not  have,  for 
it  was  not  the  fact. 

By  his  own  wrongful  act,  the  attorney  had  parted  with  posses- 
eion,  and  as  a  necessary  consequence  had  deprived  himself  of  the 
power  to  longer  misrepresent  his  authority  in  respect  thereto  to  the 
detriment  of  the  mortgagee.  The  mortgagor  thereafter  placed  his 
trust  solely  in  the  assertions  of  the  attorney  and  was  deceived.  In 
80  doing  he  was  legally  as  much  at  fault  as  the  mortgagee,  who  also 
relied  upon  the  attorney's  trustworthiness.  Therefore,  he  cannot 
invoke  in  support  of  his  contention  the  doctrine  of  apparent  author- 
ity. A  rule  which  undoubtedly  had  its  foundation  in  the  equitable 
principle,  that  if  one  of  two  innocent  persons  must  sujffer,  he  ought 
to  suffer  in  preference  whose  conduct  has  misled  the  confidence  of 
the  other  into  an  unwary  act.     (Sic.) 

The  judgment  should  be  reversed  and  a  new  trial  granted  with 
costs  to  the  appellant;  unless  within  thirty  days  the  plaintiH  stipu- 
lates to  modify  the  judgment  by  deducting  therefrom,  $104.50, 
that  being  the  amount  of  costs  of  General  Term,  and  the  further 
Bum  of  11,000,  with  interest  thereon  from  July  1,  1882,  to  date  ol 
entry  of  the  judgment  together  with  any  other  sum  i)aid  by  Grueue- 
wald  to  Baker  whether  for  principal  or  interest  prior  to  July  20, 


Chap.  IV]  Oeanb  vs.  Geuenewald.  91 

1883,  for  whicli  he  was  not  credited  by  the  trial  court;  in  which 
event  the  jndgment  as  inodilied  ia  affirmed  with  costs  of  this  court 
to  appellant. 


(50  Maine  378.) 

HEATH  VB.  NUTTER. 

(Supreme  Judicial  Court  of  Maine,  186S. 

Action  to  recover  lands.  Both  parties  claimed  under  one  "Robbins, 
the  plaintiff  under  a  quitclaim  deed  direct  from  him  and  defendants 
under  a  deed  from  him  by  Samuel  G.  Eich,  his  attorney.  The 
power  of  attorney  held  by  Eich  authorized  him  to  demand  and 
receive  all  sums  of  money  due  him  from  certain  persons  "  and  to 
settle  and  compromise  all  matters  in  dispute  in  the  premises,"  and 
"  to  grant  any  and  all  discharges  by  deed  or  otherwise,  both  per- 
sonal and  reali"  etc. 

Defendants  also  offered  to  prove  by  Eich  that  the  power  of  attor- 
ney was  given  to  him  for  the  purpose  of  conveying  the  real  estate; 
that  Eobbins  had  received  part  of  the  consideration;  that  at  the 
time  Eobbins  executed  the  quit  claim  deed  to  plaintiff,  he  said  he 
did  not  consider  that  he  had  any  interest  in  the  premises  because 
he  had  given  Eich  a  power  of  attorney  to  convey  them;  and  that 
Eobbins  had  ratified  the  conveyance  by  Eich  both  verbally  and  by 
letter  and  by  receiving  part  of  the  consideration. 

This  evidence  the  court  rejected  and  plaintiff  recovered.  Defend- 
ant appealed. 

Hathaway  &  Drinhwater,  for  plaintiff. 

Wiswell,  for  defendants. 

Appleton,  0.  J.  The  power  of  attorney  to  Eich  did  not 
empower  him  to  convey  the  demanded  premises.  ♦  ♦  ♦  ^}xq 
authority  "to  grant  any  and  all  discharges  by  deed  or  otherwise, 
both  personal  and  real,"  as  fully  as  the  principal  might  do,  cannot 
be  fairly  construed  as  enabling  the  agent  to  convey  by  bill  of  sale, 
or  by  deed  of  warranty,  all  the  personal  and  real  estate  of  his  prin- 
cipal. Nor  can  the  authority  to  convey  by  deed  be  found  else- 
where. 

Whenever  an  act  of  agency  is  required  to  be  done  in  the  name 


92  Cases  on  Agekot.  [Book  I 

of  the  principal  nnder  seal,  the  authority  to  do  the  act  must  be 
conferred  by  an  instrument  under  seal.  A  power  to  convey  lands 
must  possess  the  same  requisites,  and  observe  the  same  solemni- 
ties, as  are  necessary  in  a  deed  directly  conveying  the  land.  Gage  vs. 
Gage,  10  N.  II.  424.  Story  on  Agency,  §§  49,  50;  Montgomery  vs. 
Dorion,  6  N.  H.  250.  So  the  ratification  of  an  unauthorized  con- 
veyance by  deed  must  be  by  an  instrument  under  seal.  Story  on 
Agency,  §  252.  A  parol  ratification  is  not  sufficient.  Stetson  vs. 
Patten,  2  Greenl.  (Me.)  359, 11  Am.  Dec.  Ill;  Paine  vs.  Tucker,  21 
Me.  138,  38  Am.  Dec.  255;  Hanford  vs.  McXair,  9  Wend.  (N.  Y.) 
54;  Despatch  Line  vs.  Bellamy  Manufacturing  Co.,  12  N.  H. 
205,  37  Am.  Dec.  203. 

The  plaintiff  received  his  conveyance  with  a  full  knowledge  of 
the  equitable  rights  of  the  tenants.  The  remedial  processes  of  a 
court  of  equity  may  perhaps  afford  protection  to  the  defendants. 
At  common  law  their  defense  fails. 


(34  New  Jersey  Law,  116.) 

LONG  vs.  HARTWELL. 

("New  Jersey  Supreme  Court,  February,  1870.) 

John  H.  Piatt,  as  agent  for  Nathaniel  0.  Carpenter,  on  the  15th 
of  March,  1866,  executed  an  agreement  in  writing,  under  seal,  with 
Patrick  Long,  by  which  Carpenter  agreed  to  convey  two  lots  of  land, 
on  terms  therein  stated.  Carpenter  conveyed  one  lot  and  the 
action  was  brought  against  his  administrator  to  recover  damages 
for  not  conveying  the  other.  Piatt's  authority  to  make  the  con- 
tract was  by  parol. 

J.  Dixon,  Jr.,  for  plaintiff. 

J.  Harvey  Lyon,  for  defendant. 

Van  Syckel,  J.  •  ♦  *  The  authority  to  the  agent  to 
execute  the  written  agreement  having  been  by  parol,  it  is  insisted 
that  it  does  not  bind  the  principal.  Our  statute  of  frauds  does  not 
require  the  agent's  authority  to  make  a  contract  to  convey  land  to  be 
in  writing;  it  exacts  a  written  contract,  not  a  written  power  to  the 
agent.  The  distinction  is  clearly  drawn  in  the  terms  of  the  statute, 
between  conveying  and  contracts  to  convey  land.  In  the  former  case, 


Chap.  IV  ]  Long  vs.  Haetwell.  93 

under  the  tenth  section  the  power  to  the  agent  must  be  in  writ- 
ing; Avliile  in  the  latter,  nnder  the  fourteenth  section,  the  words 
"  in  writing"  are  omitted,  and  the  cases,  both  in  England  and  this 
country,  agree  that  the  appointment  may  be  by  parol.  2  Kent's 
Com.  C13;  10  Paige  (N.  Y.)  386;  Story  on  Agency  §  50;  Brown  on 
Frauds,  §  370,  note  2.  The  fact  that  the  coutract  in  this  case  was 
sealed  by  the  agent  does  not  vitiate  it.  There  is  no  doubt  about 
the  general  rule  that  a  power  to  execute  an  instrument  under  seal 
must  be  conferred  by  an  instrument  of  equal  solemnity.  If  the 
writing  given  by  the  agent  be  under  seal  and  that  be  essential  to  its 
validity,  the  authority  of  the  agent  must  be  of  equal  dignity  or  it 
cannot  operate.  Here  a  seal  was  not  vital  to  the  contract; 
there  was  no  authority  to  the  agent  to  attach  a  seal,  therefore  the 
seal  is  of  no  value,  but  the  power  to  execute  the  contract  without 
seal  having  been  ample,  so  far  it  becomes  the  act  of  the  principal, 
and  inures  as  a  simple  contract.  2  Kent's  Com.  613;  Lawrence  vs. 
Taylor,  5  Hill  (N.  Y.)  107.       ♦      *      ♦ 

Note. — That  unnecessary  seal  maybe  disregarded,  see  also:  Wagoner  V3. 
Watts,  44  N.  J.  L.  126;  Morrow  vs.  Higgins,  29  Ala.  448;  Thomas  vs.  Joslin, 
80  Minn.  388;  Adams  vs.  Power,  52  Miss.  828;  Worrall  vs.  Munn,  5  N,  Y.j 
229,  55  Am.  Dec.  330;  Button  vs.  Warsehauer,  21  Cal.  609,  82  Am.  Dec.  765./ 
See,  also,  post,  7^. 


(107  New  York,  490.) 

BICKFOKD  vs.  MENIER. 

fNew  York  Court  of  Appeals,  December,  1887. J 

S.  p.  Nash,  for  appellant. 

J.  B.  I'annes,  for  respondent. 

EuGEB,  Ch.  J.  This  action  was  brought  by  the  plaintifP  to 
recover  of  the  defendants  the  sum  of  £1,200,  alleged  to  have  been 
loaned  to  them  by  her  in  the  following  sums  at  the  times  mentioned, 
viz.,  £200  in  November,  1878;  £200  in  March,  1879,  and  £800  in 
May,  1879.  Previous  to  these  loans  the  plaintiff  does  not  appear 
to  have  had  any  personal  or  written  communication  with  the 
defendants  in  respect  thereto,  but  alleges  that  she  loaned  the  money 
to  one  Edward  Bickford,  an  alleged  agent  of  the  defendants. 

The  loans  were  made  at  the  city  of  Now  York,  of  which  place 
the  plaintiff  and  Edward  Bickford,  who  were  brother  and  sister, 
were  both  residents,  and  the  defendants  resided  at  Paris,  in  France. 
It  is  not  claimed  that  Edward  Bickford  had  any  written  power  of 
attorney  to  borrow  money  for  the  defendants,    or  any  positive 


94  Oases  on  AGEifCT.  [Book  I 

unwritten  or  verbal  antliority  to  do  so,  but  it  is  argued  tbat  tbe 
plaintiff  bad  tbe  rigbt  to  imply  sucb  autbority,  from  tbe  power 
wbicb  Edward  Bickford  appeared  to  exercise  as  tbe  agent  of  tbe 
defendant.  Tbe  power  wbicb  sucb  agent  really  possessed  and  tbe 
scope  of  bis  agency  is  left,  by  tbe  case,  altogetber  to  be  inferred 
from  tbe  course  of  business  pursued  by  tbe  agent,  and  tbe  verbal 
agi'eement  between  tbe  parties  under  wbicb  be  entered  into  tbe 
employment  of  tbe  defendants.  Tbat  be  was  an  agent  for  certain 
purposes  is  not  disputed,  but  it  is  strenuously  contended  by  tbe 
defendants  tbat  he  bad  no  power  to  borrow  money. 

Tbe  evidence  as  to  tbe  terms  of  tbe  contract  of  employment  and 
as  to  tbe  methods  of  transacting  tbe  business  carried  on  under  it, 
is  quite  vague  and  inconclusive,  and  we  bave  been  unable  to  dis- 
cover tberefrom  any  facts  from  wbicb  an  intention,  on  tbe  part  of 
tbe  defendants,  to  vest  tbe  agent  witb  autbority  to  borrow  money 
in  tbeir  names,  for  tbe  purpose  of  tbe  business  in  wbicb  be  was 
employed,  can  reasonably  be  derived.  It  was  said  by  Judge  Com- 
STOCK  in  Mechanics'  Bank  vs.  New  York  <&  New  Haven  Railroad 
Company,  13  N.  Y.  633,  "tbat  underlying  tbe  whole  subject  there 
is  this  fundamental  proposition  that  a  principal  is  bound  only  by 
the  authorized  acts  of  his  agent.  This  authority  may  be  proved  by 
the  instrument  which  creates  it,  and  beyond  the  terms  of  the  instru- 
ment or  of  tbe  verbal  commission,  it  may  be  shown  that  the  prin- 
cipal has  held  the  agent  out  to  tbe  world  in  other  instances  as  hav- 
ing an  authority  which  will  embrace  the  particular  act  in  question. 
I  know  of  no  other  mode  in  which  a  controverted  power  may  be 
established.'*  This  doctrine  was  somewhat  extended  in  the  case  of 
the  New  York  <&  New  Haven  Railroad  Company  vs.  Schuyler,  34 
N.  y.  30,  where  it  was  held,  '*that  when  the  autbority  of  an  agent 
depends  upon  some  fact  outside  the  terms  of  his  power  and  which 
from  its  nature,  rests  particularly  within  bis  knowlege,  the  princi- 
pal is  bound  by  the  representations  of  the  agent,  although  false,  aa 
to  tbe  existence  of  such  fact." 

Such  extension  of  tbe  rule,  however,  has  no  application  to  this 
case,  as  the  facts  proved,  do  not  bring  it  within  the  principle 
stated.  It  would  seem  to  be  the  general  rule  that  no  acts  of  an 
agent  can  be  resorted  to,  to  establish  a  power,  not  included  within 
tbe  terms  of  bis  commission,  except  those  which  are  brought  to 
the  knowledge  of  bis  principals  and  are  approved  or  acquiesced  in 
by  them. 
It  was  said  by  Judge  Andrews,  in  Welsh  vs.  Hartford  Insurance 


Chap.  IV]  BicKFORD  vs.  Mekier.  95 

Co.,  73  N.  Y.  10,  that  "  the  authority  of  an  n-crit  is  not  only  that 
conferred  upon  him  by  his  commission,  but  also  as  to  tliird  persons* 
that  which  he  is  held  out  as  possessing.  Tlie  principal  is  often 
bound  by  the  act  of  his  agent  in  excess  or  abuse  of  his  actual  author- 
ity, but  this  is  only  true  between  the  principal  and  tliird  persons 
who,  believing  and  having  a  right  to  believe  that  the  agent  was  acting 
within  and  not  exceeding  his  authority,  would  sustain  loss  if  the 
act  was  not  considered  that  of  the  principal."  A  reference  to  tt'ie 
undisputed  evidence  in  the  case,  will  show  the  nature  of  the  agency 
intended  to  be  created  by  the  defendants,  and  the  extent  of  the 
power  which  may  fairly  be  implied  therefrom.  The  rule  that  a 
principal  is  bound  not  only  by  the  acts  of  his  agent,  which  are 
expressly  authorized  by  his  commission,  but  also  for  the  exercise  of 
all  powers  which  are  necessary  and  essential  to  the  execution  and 
performance  of  the  express  purposes  described  in  his  commission, 
is  assented  to  by  the  courts  below  and  by  both  parties  to  the 
action.  In  view  of  this  rule,  let  us  look  at  the  case  for  the  pur- 
pose of  discovering  the  real  authority  conferred. 

The  defendants  were  chocolate  manufacturers,  carrying  on  their 
business  and  residing  in  the  city  of  Paris,  France.  They  also  had 
a  branch  factory  and  agency  in  the  city  of  London,  under  the 
charge  and  management  of  the  Emile  Guenin.  In  and  subsequent 
to  1868  Edward  Bickford  was  a  clerk  in  their  employ  in  London, 
and  in  1872,  for  certain  reasons,  deeming  it  desirable  to  establish 
an  agency  for  the  sale  of  their  goods  in  New  York,  they  made 
overtures  to  him,  to  proceed  there  and  receive  consignments  and 
make  sales  of  their  manufactures  upon  a  salary.  In  relation  to 
the  original  employment,  Mr.  Bickford  testified  as  follows:  "  I 
came  from  London  to  New  York  to  establish  the  house  of  Choco- 
late Menier  for  these  defendants;  at  first  I  opened  an  office  at  45 
Beaver  street;  cleared  the  goods  from  the  ship,  and  commenced 
selling  their  goods,  and  from  that  time  forward,  up  to  1882,  I  con- 
tinued in  business  in  New  York  for  them;  during  that  time  I  made 
my  returns  and  received  goods  from  the  London  house;  *  •  ♦  when 
I  came  from  London  to  New  York  to  open  this  chocolate  establish- 
ment, I  brought  no  power  of  attorney  with  me;  I  had  several  cases 
of  goods,  chocolate,  and  I  opened  in  the  name  of  Edward  Bick- 
ford and  the  business  was  carried  on  in  that  name;  I  sold  choco- 
late and  other  manufactured  goods  on  a  salary.  •  •  •  I 
opened  books  of  account  and  made  returns  from  time  to  time; 
rendered  accounts  to  Mr.  Guenin,  of  London;    •    •    •    from  that 


96  Cases  02f  Agexcy.  [Book  I 

time  down  to  1879,  I  kept  regnlar  books  of  account,  and  a  bank 
account  in  James  G.  King's  Sons,  also  in  the  Bank  of  the 
Metropolis,  in  the  Merchants'  and  Manufacturers',  the  Irving,  and 
the  Xew  York  National  Exchange  Bank;  those  accounts  were  all 
kept  in  the  name  of  Edward  Bickford."  These  extracts  from 
Bickford's  evidence  embrace  all  of  the  facts  proved  by  the  plaint- 
iff relating  to  the  character  of  the  original  employment. 
and  the  nature  of  the  agency  intended  to  be  conferred  upon 
Bickford.  It  will  be  seen  therefrom,  that  the  sole  authority 
actually  conferred  was  the  right  to  receive  the  property  of  the 
defendants,  to  store  and  sell  it. 

An  implied  power  may  be  derived,  from  the  express  powera 
mentioned,  to  apply  each  part  of 'the  proceeds  of  sale  as  was  neces- 
sary to  pay  his  salary  and  legitimate  expenses  required  in  carrying 
on  the  business.  It  follows  as  a  necessary  consequence  that  it  was 
his  duty  to  remit  the  balance  to  his  principals.  There  is  certainly 
nothing  in  the  performance  of  these  duties  which  rendered  it 
necessary  that  Bickford  should  borrow  money  on  the  credit  of  his 
principals.  It  is  idle  to  argue  that  an  authority  to  borrow  money 
may  be  implied  from  a  naked  power  to  receive  and  sell  property 
and  remit  proceeds.  The  duties  of  an  agent  in  such  a  case  are 
analogous  to  those  of  a  factor,  and  it  is  well  settled  that  such  an  agent 
has  no  authority  to  borrow  money  in  the  name  of  his  principal.  1 
Parsons  on  Contracts,  42,  note  e;  1  Chitty  on  Contracts,  (1 1  Am.  ed.) 
293;  liossiter  vs.  Rossiter,  8  Wend.  494;  24  Am.  Dec.  62;  Hawtayne 
vs.  Bourne,  7  M.  &  "W.  595.  If  we  examine  the  evidence  relating 
to  the  course  of  the  business  actually  carried  on  under  this  employ- 
ment, we  shall  fail  to  find  any  exercise  of  a  power  to  bind  his  princi- 
pals for  borrowed  money,  or  any  similar  power  which  would  author- 
ize the  implication  that  he  possessed  such  a  power.  No  evidence 
appears  authorizing  the  inference  that  the  defendants  held  Bick- 
ford out  to  the  American  public  as  an  agent  of  theirs  for  any 
purpose.  The  business  was  all  carried  on  in  the  individual  name 
of  Edward  Bickford,  and  it  docs  not  appear  that  the  names  of  the 
defendants  were  in  any  way  used  in  the  business.  There  was 
evidence  that  Bickford  was  in  some  way  introduced  by  the  defend- 
ants to  the  banking  firm  of  John  G.  King  &  Sons,  but  nothing 
was  shown  authorizing  the  inference  that  he  was  thereby 
empowered  to  borrow  money  generally  of  them  in  the  name  of  his 
principals.  It  is  quite  significant  that  in  a  course  of  correspond- 
ence extending  over  a  period  of  ten  years  between  the  agent  and 


Chap.  TV]  BiCKFORD  vs.  Menier.  97 

his  principals,  no  allusion  is  made  to  the  existence  of  any  snch 
power,  and  neither  is  there  any  apparent  ratification  by  the 
principals  of  the  exercise  of  such  power  on  the  part  of  the  agent. 

From  a  settlement  of  the  accounts  of  the  parties  made  as  of  the 
date  of  May  1,  1879,  it  appeared  that  the  New  York  agency  had 
run  behind  and  become  indebted  to  the  defendants  over  and  above 
the  property  remaining  on  hand  at  the  agency  in  the  sum  of 
£1,013,  18s.  This  sum  represented  the  accumulated  deficiencies  of 
Bickf ord  for  a  long  period  of  time,  and  was  chargeable  to  him  as  bo 
much  cash,  which  he  was  liable  to  account  for  to  the  defendants  on 
demand.  In  other  words,  he  had,  up  to  that  time,  appropriated 
to  his  own  use  the  moneys  of  the  defendants  and  failed  to  liquidate 
his  obligations  to  them.  He  was  enabled  to  square  his  accounts  at 
this  time  by  the  generosity  of  his  principals  in  voluntarily  writing 
off  therefrom  the  sum  of  £1,574,  18s,  3d.  Bickford  then,  accord- 
ing to  his  own  statement,  started  to  continue  the  business  dis- 
charged from  any  pecuniary  liability  to  the  defendants.  Although 
£400  of  the  sum  recovered  in  this  action  had  been  previously  bor- 
rowed by  Bickford,  no  part  of  it  entered  into  the  statement  of  May 
1,  1879,  and  no  report  of  such  borrowing  had  been  made  by  Bick- 
ford to  his  principals  at  that  time.  It  is  obvious  if  this  sum  had 
entered  into  that  statement,  as  it  should  have  done  if  it  was  then 
in  truth  a  liability  of  the  defendants,  Bickford's  deficit  had  been 
untruly  represented  to  the  defendants,  and  it  ought  to  have  been 
increased  nearly  $-2,000.  It  is  an  iucoutrovertible  inference  from 
the  evidence  that  from  a  time  anterior  to  these  alleged  loans  down 
to  a  time  subsequent  thereto,  Bickford  was  largely  indebted  to  the 
defendants  and  liable  immediately  to  be  called  upon  for  the  pay- 
ment of  such  indebtedness. 

A  series  of  ten  drafts  dated  on  different  days  and  running  from 
October  5,  1878,  to  January  19,  1879,  drawn  by  Guenin  upon  Bick- 
ford for  small  sums  aggregating  about  £200,  appear  in  evidence, 
and  were  apparently  drawn  to  recover  from  Bickford  some  part  of 
his  indebtedness  to  his  principals.  Although  no  other  drafts 
appear  in  the  case,  it  is  fairly  inferable  from  the  evidence  that  such 
drafts  were  generally  used,  and  that  the  mode  of  remitting  the 
proceeds  of  the  goods  sold  by  Bickford,  to  which  defendants  were 
entitled,  was  by  the  payment  of  the  drafts  drawn  upon  him  by  the 
defendants. 

To  infer  that  it  was  within  the  apparent  scope  of  Bickford*8 
7 


98  Cases  ox  Ageitcy.  [Book  1 

agency  to  borrow  money  in  tlie  name  of  his  principals  to  pay  liis 
own  debt  to  them,  invdves  a  manifest  absnrdity.  The  subject  of 
borrowing  was,  on  one  or  two  occasions,  referred  to  in  the  corres- 
pondence between  Bickford  and  Guenin,  but  a  careful  examination 
shows  that  it  invariably  referred  to  a  borrowing  by  Bickford  of  a 
particular  firm  to  discharge  his  obligation  to  defendants,  and  no 
inference  can  be  drawn  therefrom  that  Guenin  contemplated  a  loan 
upon  the  credit  of  the  Meniers.  It  is  not  claimed  that  the  plaint- 
iff knew  of  these  letters  or  transactions  under  them,  or  was  thereby 
induced  to  loan  the  money  in  question,  and  she  apparently  relied 
altogether  upon  the  actual  authority  possessed  by  Bickford.  It  is 
also  quite  clear  that  the  references  in  the  letters  related  to  specific 
transactions,  when,  if  anything,  a  special  authority  alone  was  con- 
ferred, and  afford  no  basis  for  an  inference  that  any  general 
authority  was  possessed  by,  or  intended  to  be  given  to  the  agent  to 
use  the  credit  of  his  principals. 

Bickford  testified  that  in  the  course  of  his  agency  he  probably 
borrowed  and  remitted  to  his  principals  from  $15,000  to  f;20,000, 
but  there  is  no  evidence  in  the  case  showing  that  he  borrowed  this 
money  upon  the  credit  of  the  Meniers,  or  that  he  did  so  at  all  until 
after  special  authority  was  given  therefor,  or  that  he  did  it  for  any 
other  purpose  except  to  discharge  his  obligations  to  his  principals. 
If  we  come  to  the  particular  transaction  in  question  we  find  no 
evidence  of  any  loan  by  the  plaintiff  to  the  Meniers,  or  upon  their 
credit.  No  representation  was  made  by  the  agent  that  he  had 
authority  to  borrow  for  the  Meniers,  and  no  note  or  memorandum 
was  given  by  him  to  the  plaintiff  at  the  time  of  the  loan.  The 
drafts  through  Avliich  the  loans  were  made  were  drawn  by  the 
plaintiff,  and  made  payable  to  Edward  Bickford  individually. 

All  proof  of  the  transaction  was  confined  to  the  oral  evidence  of 
Miss  Bickford  and  her  brother  given  on  the  trial.  Their  evidence 
does  not  materially  vary  as  to  the  circumstances  of  the  loan  and  is 
most  concisely  stated  in  the  testimony  of  the  plaintiff.  She  says: 
"  When  I  came  over  from  England  in  November,  I  loaned  £;200  to 
him  for  the  business  of  Meuier;  I  loaned  the  next  £200  in  March 
the  next  year;  my  brother  was  going  to  England  to  see  Mr.  Guenin, 
and  he  required  the  money  for  the  drafts,  and  I  was  to  be  left  in 
charge  of  the  business,  and  I  could  not  be  left  without  money  to 
pay  the  drafts;  I  loaned  it  for  that  purpose  entirely;  the  £800  waa 
loaned  when  he  returned  from  England;  he  returned  the  end  of 


Chap.  IV]  BicKFORD  vs.  Meniee.  99 

April  some  time,  and  in  May  it  was  advanced;  it  was  loaned  for  the 
same  purposes  as  the  other  money  was  loaned.'* 

This  evidence  does  not  show  that  Bickford  claimed  to  the  plaint- 
iff to  have  authority  to  horrow  money  in  the  name  of  the  Meniers, 
or  that  he  in  fact,  did  horrow  it  upon  their  credit,  or  to  discharge 
their  obligation.  It  is  jirobably  true,  in  a  general  sense,  that  he 
wanted  it  for  the  business  of  Menier,  but  that  was  a  business 
which  he  was  carrying  on  in  his  own  name  and  had  incurred  an 
indebtedness  to  them  in  performing.  It  was  this  indebtedness  that 
the  drafts  were  drawn  to  recover,  and  the  plaintiff  seems  to  have 
been  cognizant  of  this  fact.  It  is  diflicult  to  see  how  she  could 
have  supposed  that  she  was  lending  money  to  the  Meniers,  when 
she  was  obviously  supplying  money  to  pay  the  obligations  of  her 
brother  to  them. 

The  plaintiff  has  been  allowed  to  recover  in  the  action,  upon  the 
theory  that  the  borrowing  in  question  was  within  the  apparent 
scope  of  the  agent's  authority,  and  this  question  was  left,  as  one 
of  fact,  to  be  determined  by  the  jury.  We  are  of  the  opinion  that 
the  court  erred  in  this  respect,  and  that  there  was  no  evidence  in 
the  case  authorizing  a  verdict  for  the  plaintiff.  The  apparent 
authority  in  this  case  was  precisely  co-extensive  with  the  actual 
authority.  The  agent's  real  authority  was  confined  to  the  duty  of 
receiving  consignments  from  the  Meniers,  storing  and  caring  for 
them,  selling  them,  and,  after  paying  the  expenses  of  the  business 
from  the  receipts,  to  remit  the  balance  to  the  Meniers. 

If  the  transaction  of  this  business  absolutely  required  the  exer- 
cise of  the  power  to  borrow  money  in  order  to  carry  it  on,  then 
that  power  was  impliedly  conferred  as  an  incident  to  the  employ- 
ment, but  it  does  not  afford  a  sufficient  ground  for  the  inferenee 
of  such  a  power,  to  say  that  the  act  proposed  was  convenient  or 
advantageous,  or  more  effectual  in  the  transaction  of  the  business 
provided  for;  but  it  must  be  practically  iudisj^ensable  to  the  execu- 
tion of  the  duties  really  delegated  in  order  to  justify  its  inference 
from  the  original  employment.  "We  are  of  the  opinion  that  the 
case  of  Tucler  vs.  Woolseij,  64  Barb.  (N.  Y.)  142,  is  in  point. 
The  facts  of  that  case  are  the  counterpart  of  those  existing  here. 
There  the  agent  was  furnished  with  goods  to  sell  in  Xew  York  for 
a  principal  in  France.  He  there  hired  a  place  to  store  and  show 
his  goods.  He  also  received  special  authority  on  several  occasions 
to  borrow  money,  as  perhaps  Bickford  did  here,  but  it  was  there 


100  Cases  on  Agency.  [Book  I 

held  that  the  general  power  to  borrow  money  was  neither  within 
the  actnal  authority  of  the  agent  or  its  apparent  scope. 

"We  think  the  motion  to  non-suit  the  plaintiff  at  the  close  of  her 
evidence  should  have  been  granted,  and  that  it  was  error  to  deny  it. 

The  judgment  of  the  courts  below  should  be  reversed,  and  a  new 
trial  ordered,  with  costs  to  abide  the  event. 

All  concur.  Judgment  reversed. 

NOTB.— See  also  Heath  vs.  Paul,  (1892)  81  Wis.  533. 


(5  OusHiNQ,  483;  52  Am.  Deo.  741.) 

GAEDNEE  vs.   GAEDNEE. 

^Supreme  Judicial  Court  of  Massachusetts,  March,  1860.) 

Action  to  foreclose  a  mortgage.  It  appeared  that  the  name  of 
Polly  Gwinn,  the  mortgagor,  was  written  by  her  consent,  in  her 
presence,  by  her  daughter. 

O.  Bunker,  for  demandant. 
T,  O.  Coffin,  for  the  tenant. 

Shaw,  0.  J.  The  only  question  is  upon  the  suflScienoy  of  the 
execution  of  a  mortgage  deed,  as  a  good  and  valid  deed  of  Polly 
Gwinn.  The  execution  of  the  deed  is  objected  to,  on  the  ground 
that  when  a  deed  is  executed  by  an  agent  or  attorney,  the  authority 
to  do  so  must  be  an  authority  of  as  high  a  nature,  derived  from 
an  instrument  under  the  seal  of  the  grantor.  Tliis  is  a  good  rule 
of  law,  but  it  does  not  apply  to  the  present  case.  The  name  being 
written  by  another  hand,  in  the  presence  of  the  grantor,  and  at 
her  request,  is  her  act.  The  disposing  capacity,  the  act  of  mind, 
which  are  the  essential  and  efficient  ingredients  of  the  deed,  are 
hers,  and  she  merely  uses  the  hand  of  another,  through  incapacity 
or  weakness,  instead  of  her  own,  to  do  the  physical  act  of  making 
a  written  sign.  Whereas,  in  executing  a  deed  by  attorney,  the 
disposing  power,  though  delegated,  is  with  the  attorney,  and  the 
deed  takes  effect  from  his  acts,  and  therefore  the  power  is  to  be 
strictly  examined  and  construed,  and  the  instrument  conferring  it 
is  to  be  proved  by  evidence  of  as  high  a  nature  as  the  deed  itself. 


Chap.  IV]  Gakdner  vs.  Gardner.  101 

To  hold  otherwise,  would  be  to  decide,  that  a  person  having  a  clear 
mind  and  full  capacity,  but  through  physical  inability  incapable 
of  makiupr  a  mark,  could  never  make  a  conveyance  or  execute  a 
deed;  for  the  same  incapacity  to  sign  and  seal  the  principal  deed 
would  prevent  him  frorn  ezecuting  the  letter  of  attorney  under 
seal. 

It  appears  to  ns,  that  the  distinction  between  writing  one's  name 
in  his  presence  and  at  his  request,  and  executing  a  deed  by  attor- 
ney, is  obvious,  well  founded,  stands  on  satisfactory  reasons,  and  is 
well  sustained  by  authorities;  Ball  vs.  Dunsterville,  4  T.  R.  313; 
Tlie  King  vs.  Lotignor,  1  Kev.  and  M.  576,  s.  c.  4  Barn,  and  Adol. 
647;  2  Greenl.  Ev.  sec.  295.  We  think  the  deed  was  well  executed 
by  Pollj  Gwinn;  and  the  judgment  must  therefore  stand  for  the 
demandant. 

Note. — See  also  Wood  vs.  Goodridge,  6  Cush.  (Mass.)  117,  52  Am.  Deo. 
771;  Handy  side  vs.  Cameron,  21  III.  588,  74  Am.  Dec.  119;  Cray  vs.  Busen- 
bark,  72  Ind.  48;  Eggleston  vs.  Wagner,  46  Mich.  610;  McMurtry  vs.  Brovm, 
6  Neb.  868. 


(140  Massachusetts,  36,  54  Am.  Rep.  442.) 

PHELPS  vs.  SULLIVAN. 

(Supreme  Judicial  Court  of  Massachusetts,  June,  1885.  J 

Action  to  foreclose  a  mortgage.     The  opinion  states  the  facts. 

Q.  H.  Stevens,  for  demandant. 

S.  Bancroft,  for  tenant. 

Morton,  C.  J.  This  is  a  writ  of  entry  to  foreclose  a  mortgage. 
The  demandant  claims  under  a  mortgage  from  the  tenant  to 
Nathan  P.  Pratt,  and  an  assignment  thereof  by  said  Pratt.  It 
appeared  at  the  trial  that  said  Pratt  executed  and  acknowledged 
the  assignment  in  blank,  and  orally  authorized  his  son,  when  he 
could  find  a  person  to  purchase  the  mortgage,  to  write  in  the  name 
of  such  person  as  the  grantee,  and  to  deliver  the  assignment.  The 
son  negotiated  the  mortgage  to  one  Simonds,  filled  in  his  name  as 
grantee,  and  then  delivered  to  him  the  assignment.  He  afterwards 
reported  what  he  had  done  to  Nathan  P.  Pratt,  who  replied,  "It 
is  all  right.'*    The  only  question  presented  by  the  bill  of  exceptions 


102  Cases  on  Agency.  [Book  I 

is  whether,  upon   these  facts,  there   was  a  valid  assignment  to 
Simonds. 

The  tenant  contends  that  the  assignment  was  invalid,  relying 
npon  the  rule  of  the  common  law  that  an  authority  to  an  agent  to 
execute  a  deed  or  other  specialty  must  be  under  seal.  But  we  do 
not  think  the  case  is  governed  by  this  rule.  Where  a  deed  pur- 
ports to  be  executed  by  an  agent,  or  where  the  person  with  whom 
an  agent  is  dealing  knows  that  he  is  acting  as  agent,  it  may  be  that 
Buch  person  must  see  to  it  at  his  own  peril  that  the  agent  has  legal 
authority.  But  in  this  case  the  assignment  did  not  disclose,  and 
Simonds  did  not  know,  that  the  son  was  acting  as  agent  in  any 
respect  except  to  deliver  the  assignment.  It  is  settled  that  an 
authority  to  deliver  a  deed  or  other  specialty  may  be  by  parol. 
Parker  vs.  Hill,  8  Mete.  (Mass.)  447.  A  deed  takes  effect  from 
its  delivery,  and  it  may  well  be  held  that  the  authority  to  deliver, 
which  may  be  oral,  is  an  authority  to  deliver  the  deed  in  the  con- 
dition in  which  it  is  when  delivered,  if  there  are  no  circumstances 
of  suspicion  to  put  the  grantee  upon  inquiry.  When  a  grantor 
signs  and  seals  a  deed,  leaving  unfilled  blanks,  and  gives  it  to  an 
agent  with  authority  to  fill  the  blanks  and  deliver  it,  if  the 
agent  fills  the  blanks  as  authorized,  and  delivers  it  to  an 
innocent  grantee  without  knowledge,  we  think  the  grantor 
is  estopped  to  deny  that  the  deed  as  delivered  was  his  deed.  Other- 
wise he  may,  by  his  voluntary  act,  enable  his  agent  to  commit  a 
fraud  upon  an  innocent  party.  Whether  if  the  agent  violates  the 
instructions  in  filling  the  blanks,  the  grantor  would  not  in  like 
manner  be  bound,  we  do  not  discuss,  as  it  is  not  involved  in  this 
case.  To  hold  that  such  deeds  are  invalid,  because  the  authority 
to  fill  the  blanks  is  not  under  seal,  would  tend  to  unsettle  titles, 
and  would  be  mischievous  in  its  results.  Few  deeds  are  written  by 
the  grantors.  Most  are  written  by  scriveners,  and  a  grantee  to 
whom  a  deed  is  delivered  has  no  means  of  determining  whether  the 
body  of  the  deed  was  written  before  or  after  the  signature  was 
aflQxed.  It  would  be  very  dangerous  to  allow  titles  to  be  defeated  by 
parol  proof,  that  a  deed,  without  suspicion  on  its  face,  duly  signed 
and  sealed  by  the  grantor,  which  he  authorized  to  be  delivered, 
was  in  fact  written  in  some  part  after  he  had  executed  it,  by  an 
agent  having  only  oral  authority.  We  think  a  person  taking  such  a 
deed  in  good  faith  has  a  right  to  rely  upon  it,  and  that  the  grantor 
cannot  be  permitted  to  aver  that  it  is  not  his  deed.  White  vs. 
Duggarty  140    Mass.  18,  54  Am.  Eep.   441.       ♦       ♦       •       (Dig- 


Chap.  IV]  Phelps  vs.  Sullivan.  103 

tiiignishing  Burns  vs.  Lyjide,  6  Allen,  (Mass.)  305^  and  Basford 
vs.  Pearson,  9  Allen,  387,  85  Am.  Dee.  7G4.)  Upon  the  facts 
presented  in  the  bill  of  exceptions,  we  are  of  opinion  that  the 
assignnient  to  Simonds  was  valid.       ♦       •      * 

Exceptions  sustained. 

Note.— See  post,  Drury  vs.  Foster,  p. See  also  in  accord  with  the 

principal  case:  VanEtta  vs.  Evenson,  28  Wis.  33,  9  Am.  Rep.  486;  Schintz 
vs.  UcManamy,  83  Wis.  299;  Field  vs.  Siugg,  52  Mo.  534,  14  Am.  Rep.  435; 
Swartz  vs.  Ballou,  47  Iowa,  188,  29  Am.  Rep.  470;  Camjibell  vs.  Smith,  71 
N.  y.  26,  27  Am.  Rep.  5;  Vase  vs.  Dolan,  108  Mass.  155,  11  Am.  Rep.  331; 
Garland  vs.  Wells,  15  Neb.  298. 

Contra.— C/pf on  rs.  ^rc7ic?-,  41  Cal.  85,  10  Am.  R(p.  266;  Preston  va, 
Hull,  23  Gratt.  (Va.)  COO,  14  Am.  Rep.  153;  Williams  vs.  Crutcher,  5  How. 
(Miss.)  71,  85  Am.  Dec.  422;  Davenport  vs.  Sleight,  2  Dev.  and  Bat  L.  (N. 
C.)  881,  81  Am.  Deo.  420;  Bland  vs.  ailagan,  64  N.  C.  472. 


(84  Maine  349,  30  Am.  St.  Rep.  353.) 

BKECKENRIDGE  vs.   LEWIS. 

^Supreme  Judicial  Court  of  Maine,  March  23, 1892.) 

Assumpsit  by  Joseph  Breckenridge  against  Mary,  A.  H.  Lewis. 
There  was  a  verdict  for  plaintiff,  and  defendant  moves  to  set  the 
same  aside,  and  excepts. 

F.    V.  Chase,  for  plaintiff. 

Edward  Avery  and  A.  A.  Strout,  for  defendant. 

Haskell,  J.  The  plaintiff  indorsed  the  defendant's  promissory 
note  for  the  accommodation  of  one  Morse,  the  payee,  who  then 
negotiated  the  same,  and,  when  it  fell  due,  the  plaintiff  paid  it, 
and  now  sues  to  recover  the  amonnt  of  the  note  from  the  defendant. 

1.  The  signature  of  defendant  to  the  note  was  claimed  to  be  a 
forgery.     The  court  ruled  that  a  defense. 

2.  The  note  was  claimed  to  have  been  fraudulently  written  by 
the  payee,  Morse,  over  the  defendant's  name,  signed  on  blank 
paper,  to  enable  Morse  to  write  an  order  on  a  savings  bank,  where 
defendant  had  funds,  as  the  necessities  of  her  business  entrusted  to 
Morse  might  require;  and  the  court  ruled  that  contention  no 
defense. 

It  is  contended  that  defendant's  negligence  in  the  premises 


104  Cases  on  Agency.  [Book  I 

ehonld  have  been  submitted  to  the  jury;  but  that  waB  not  neces- 
Bary,  inasmuch  as  the  question  of  negligence,  as  matter  of  fact, 
need  not  be  considered  an  element  required  to  charge  the  defend- 
ant under  the  facts  of  this  case.     The  payee  of  the  note,  Morse, 
was  intrusted  with  defendant's  name  in  blank,  to  draw  funds  nec- 
essary to  meet  the  calls  of  her  business,  intrusted  to  the  care  of  her 
agent,  Morse.     He  was  authorized  to  write  an  order  above  defend- 
ant's signature,  but  instead  of  so  doing  he  wrote  a  promissory  note, 
and  obtained  the  amount  of  it  from  a  stranger.     He  fraudulently 
used  his  apparent  authority  for  his  own  gain  instead  of  his  princi- 
pal's.    His  relation  to  his  principal  is  the  same  as  if  he  had  pro- 
cured the  money  on  an  order  that  he  was  authorized  to  write,  and 
then  embezzled  it.     The  defendant  may  be  held  under  the  plain 
rules  of  agency.     By  intrusting  her  signature  to  her  agent  for  use, 
the  defendant  gave  him  an  apparent  authority  to  use  it  in  the 
manner  he  did.     The  limited  authority,  only  known  to  themselves, 
cannot  be  held  to  reach  strangers,  who  neither  knew,  nor  had  means 
of  knowing,  of  that  secret  limitation.     The  note,  when  presented 
for  discount,  gave  no  suggestion  of  infirmity.     The  signature  was 
genuine,  and  apparently  the  payee,  defendant's  agent,  who  indorsed 
it,  had  authority  to  negotiate  it.     It  was  apparently  the  defend- 
ant's genuine  promise,  and  she,  by  intrusting  her  name  to  her 
agent  for  commercial  purposes,  held  him  out  as  an  agent  with  gen- 
eral powers  in  relation  to  it.     She  clothed  him  with  apparent 
authority,  and  cannot  now  deny  it  to  the  loss  of  any  person  who 
innocently  relied  upon  it.     It  is  better  that  she  bear  the  conse- 
quences of  misplaced  confidence  than  that  an  equally  innocent  per- 
son shall  suffer.  She  selected  the  agent;  the  plaintiif  did  not.    The 
apparent  authority  of  the  agent  makes  his  act  her  own,  in  this  case, 
as  eif  ectually  as  if  her  authority  had  been  real.     That  is  the  doctrine 
of  Young  vs.  Oroie,  4  Bing.  253,  and  of  Pidnmn  vs.  Sullivan,  4 
Mass.  45,  3  Am.  Dec.  206,  cited  with  approval  in   Wade  vs.    With- 
ington,  1  Allen,  5G2,  and  in  Greenfield  Banlc  vs.  Stowell,  123  Mass. 
198,   199,   25   Am.   Kep.   67,  where  all  the  cases,  both  English 
and  American,  are  reviewed.     See,  also,  Ilcdlon  vs.  Churchill,  73 
Me.  146,  40  Am.  Rep.  345. 

The  same  doctrine  is  held  in  the  Earl  of  Sheffield's  Case,  L.  R. 
13  App.  Cas.  333,  (1888.)  The  earl  authori;:cd  his  agent  to  pro- 
cure a  loan  for  a  limited  amount,  and  transferred  to  him  in  blank 
certain  stocks,  and  delivered  to  him  certain  bonds  for  the  purpose. 
The  agent  procured  the  loan,  and  delivered  the  securities  to  a  broker. 


Chap.  IV]  Beeckeneidgb  vs.  Lewis.  105 

who  in  turn  pledged  them  for  his  entire  indebtedness  to  certain 
banks.  The  earl  sought  to  redeem,  but  the  banks  (the  broker  be- 
ing insolvent)  refused  him,  relying  upon  their  legal  title  to  the 
securities.  At  the  first  trial  redemption  was  denied  upon  the 
ground  that  the  agent  was  master  of  the  stocks,  and  had  actual 
authority  to  convey  them.  On  appeal  it  was  held  that  the  agent 
had  not  actual  authority  to  dispose  of  the  stocks  as  he  pleased;  that 
his  actual  authority  was  limited  to  the  amount  of  the  loan  author- 
ized; but  that  the  banks  became  owners  of  the  stocks  and  bonds, 
having  acquired  the  legal  title,  without  notice  of  infirmity,  through 
an  agent  who  apparently  had  full  authority  to  give  it.  On  final 
appeal,  the  lords  approved  the  doctrine  of  the  court  of  appeals,  that 
if  the  banks  as  purchasers  of  the  stocks  took  the  legal  title  from  an 
agent  having  apparent  authority  to  give  it,  without  notice  of  his 
actual  limited  authority,  such  title  would  become  absolute;  but 
reversed  the  judgment  of  the  court  of  appeals,  for  the  reason  that 
the  banks  had  actual  notice  of  the  limited  authority  of  the  broker 
over  the  stocks,  and  allowed  the  earl  to  redeem.  See,  also.  Colo- 
nial Bank  vs.  Cady,  L.  K.  15  App.  Gas.  267. 

Is  is  the  same  doctrine  held  where  the  signatnre  is  placed  to  a 
blank  instrument  to  be  filled  by  the  person  intrusted  with  it,  only 
the  blank  is  a  patent  limitation  of  the  agent's  authority.  He  may 
fill  the  blank  as  may  suit  him  best,  and  the  principal  will  be  held. 
The  blank  form  carries  with  it  an  implied  authority  to  complete  it, 
but  not  to  alter  it.  Russell  vs.  Langstaffe,  2  Doug.  514;  VioUii 
vs.  Patton,  5  Oranch,  142;  Bank  vs.  Neo.l,  22  How.  96;  Bank  vs. 
Kimball,  10  Gush.  373;  Angle  vs.  Insurance  Co.,  92  U.  S.  330; 
Abbott  vs.  Rose,  62  Me.  194,  16  Am.  Eep.  427,  approved  in  ^e/%^ 
vs.  Curtis,  65  Me.  61,        ♦        *        * 

Motion  and  exceptions  oTerroIed. 


106  Cases  on  Agenot.  [Book  I 

III. 

EVIDENCE    OF  THE   AUTHORITY. 


(11  Michigan,  185.) 

HATCH  vs.    SQUIEES. 

(Supreme  Court  of  Michigan,  January,  186S.J 

Sqnires  replevied  property  which  one  Hatch  had  taken  posses- 
sion of  as  the  agent  of  McCormick.  On  the  trial  considerable 
evidence  was  given  by  plaintiff  of  the  acts,  declarations  and  promises 
of  one  Walker  whom  plaintiff  alleged  to  be  the  agent  of  McCor- 
mick. Defendant  objected  to  this  evidence  npon  the  gronnd  that 
there  was  no  evidence  that  Walker  was  such  agent.  Judgment  for 
plaintiff  and  defendant  brought  error. 

H.  J.  Beahes,  for  plaintiff  in  error. 
0.  HawTcins,  for  defendant  in  error. 

Maktin,  C.  J.  This  case  hinges  almost  entirely  upon  the  admia- 
sibility  of  the  acts  and  declarations  of  Walker — who  purported  to 
act  as  the  agent  of  McCormick — without  proof  of  such  agency. 
The  authority  of  an  agent  must  be  positively  shown,  either  by 
proving  his  authority  to  act,  or  by  proving  his  acts  with  the  knowl- 
edge and  recognition  of  his  principal.  In  this  case  nothing  of  the 
kind  was  accomplished  or  attempted.  The  only  attempt  to  prove 
the  agency  of  Walker  was  by  proving  his  own  acts  and  assertions. 
This  is  insufficient.  As  these  would  not  bind  McCormick,  so  they 
would  not  bind  the  plaintiff  in  this  cause.  It  is  too  obvious  to 
need  demonstration  that  an  agent's  authority  cannot  be  proved  by 
his  own  assertion  alone.  There  must  be  some  evidence  of  author- 
ity beyond  his  assertion,  or  of  ratification  of  his  acts  before  any 
party  can  be  bound  by  such  acts. 

There  was  error,  therefore,  in  admitting  evidence  of  the  acta, 
declarations  and  promises  of  Walker;  and  the  judgment  must  be 
reversed,  with  costs,  and  a  new  trial  granted. 

NOTK— In  Mitchum  vs.  Dtmlap,  98  Mo.  418,  it  is  said:  "  The  law  is  well 
settled  that  the  declarationa  of  one  who  assumes  to  act  aa  the  agent  of 
auother  are  not  admissible  to  estabUteh  the  agency.  Peck  vs.  liitchey,  66 
Mo.   114;  Whart.  on  Ev.  (2d  ed.)  §  1183;  Sumner  vs.  Sanders,  51  Mo.  89. 


Chap.  IV]  Hatch  vs.  Squiee3.  107 

But  the  authority  of  the  agent  need  not  be  proved  by  an  express  contract 
of  agency;  it  may  be  proved  by  the  habit  and  course  of  business  of  the 
principal.  Franldin  vs.  Ins.  Co.,  52  Mo.  461;  Brooks  vs.  Jameson,  r>5  Mo. 
512.  So.  too,  the  agency  and  extent  of  authority  may  be  inferred  from 
oircumstancea.    Hull  vs.  Jones,  69  Mo.  587." 

Before  the  statements  or  admissions  of  the  agent  can  be  proved,  the  fact 
of  the  agency  must  first  be  shown  by  other  evidence.  Peck  vs.  liiichey, 
nipra;  Chilbert  vs.  James,  86  N.  C.  244;  South,  etc.,R.  R.  vs.  Henlein,  52  Ala. 
606. 

Agency  can  not  be  proved  by  general  reputation.  Graves  vs.  Horton, 
ante,  p.  82. 

Where  the  authority  is  conferred  by  written  instrument,  the  writing  is 
the  best  evidence.  Neal  vs.  Patten,  40  Ga.  363;  Columbia  Bridge  Co.  vs. 
Geisse,  88  N.  J.  L.  89;  Reese  vs.  Medlock,  27  Tex.  120,  84  Am.  Dec.  611. 


(15  Kansas,  492.) 

THE  HOWE  MACHINE  CO.  vs.  CLARK. 

f Supreme  Court  of  Kansas,  July,  1875.) 

Eeplevin  by  the  company  against  Clark.  The  plaintiff  origin- 
ally owned  the  property  in  question  which  it  had  leased  to  one 
Tracy,  Tracy  sold  it  to  defendant,  without  plaintiff's  knowledge  or 
consent.  The  authority  of  Tracy  became  the  material  matter  in 
controversy.     Defendant  had  judgment  and  plaintiff  brings  error. 

Devenney  &  Green,  for  plaintiff. 
St.  John  S  Parker,  for  defendant. 

Valektine,  J.  •  •  ♦  It  was  error  for  the  conrt  to  permit 
defendant  to  prove  the  statements  of  Tracy  formerly  made  by  him 
concerning  this  and  other  property.  The  defendant  claimed  that 
Tracy  had  authority  from  the  Howe  Machine  Company  to  sell  this 
identical  property;  and  for  the  purpose  of  proving  that  Tracy  had 
snch  authority,  introduced  evidence  over  the  objections  of  the 
plaintiff,  but  with  the  permission  of  the  court,  showing  that  Tracy 
had  at  different  times  stated  that  he  had  snch  authority,  and 
that  he  had  authority  to  sell  not  only  this  but  other  property 
belonging  to  the  company.  Now  it  is  competent  to  prove  a 
parol  agency,  and  its  nature  and  scope,  by  the  testimony  of  the 
person  who  claimes  to  be  the  agent.  It  is  competent  to  prove  a 
parol  authority  of  any  person  to  act  for  another,  and  generally  to 


108  Cases  on  Agency.  [Book  I 

prove  any  parol  authority  of  any  kind,  by  the  testimony  of  the 
person  who  claims  to  possess  such  authority.  But  it  is  not  com- 
petent to  prove  the  supposed  authority  of  an  agent,  for  the 
purpose  of  binding  his  principal,  by  proving  what  the  supposed 
agent  has  said  at  some  previous  time.  Nor  is  it  competent  to 
prove  a  supposed  authority  of  any  kind,  as  against  the  person  from 
whom  such  authority  is  claimed  to  have  been  received,  by  proving 
the  previous  statements  of  the  person  who  it  is  claimed  had 
attained  such  authority.      •        ♦        • 

Judgment  reversed. 

Note.— See  also  Thayer  vs.  Meeker,  86  111.  470;  French  vs.  Wade,  85 
Kan.  391;  Piercy  vs.  Hendrick,  2  W.  Va.  458,  98  Am.  Dec.  774:  Gould 
vs.  Norfolk  Lead  Co.,  d  Gush.  (Mass.)  338,  57  Am.  Deo,  50;  Dowell  vs. 
WiUiams,  33  Kan  819. 


Chap.  V]  McCkackek  vs.  San  Feancisoo.  103 


CHAPTER    V. 

OF  RATIFICATION. 


L 

WHAT  IS  MEANT  BY  EATIFICATIOIT. 


(16  Oalifoenia,  591.) 

MoORAOKEN  vs.    CITY  OF  SAN  FEANOISOO. 

^Supreme  Court  of  California,  October,  1860. J 

Field,  0.  J.  •  •  •  To  ratify  is  to  give  validity  to  the  act 
of  another.  A  ratification  is  equivalent  to  a  previous  authority. 
It  operates  upon  the  act  ratified  in  the  same  manner  as  though  the 
authority  had  been  originally  given.  It  follows,  as  a  consequence, 
that  where  the  authority  can  originally  be  conferred  only  in  a  par- 
ticular form  or  mode,  the  ratification  must  follow  the  same  form 
or  mode.  Thus,  if  an  authority  to  execute  a  deed  of  a  private 
person  must  be  under  seal,  the  ratification  of  the  deed  must 
be  also  under  seal;  and  where  an  authority  to  do  any  partic- 
ular act  on  the  part  of  a  corporation  can  only  be  conferred 
by  ordinance,  a  ratification  of  such  acts  can  only  be  by  ordinance. 
•  •  •  It  follows,  also,  from  the  general  doctrine,  that  a  ratifi- 
cation is  equivalent  to  a  previous  authority,  that  a  ratification  can 
only  be  made  when  the  principal  possesses  at  the  time  the  power 
to  do  the  act  ratified.  He  must  be  able,  at  the  time,  to  make  the 
contract  to  which,  by  his  ratification,  he  gives  validity.  The  rati- 
fication is  the  first  proceeding  by  which  he  becomes  a  party  to  the 
transaction,  and  he  cannot  acquire  or  confer  the  rights  resulting 
from  that  transaction,  unless  in  a  position  to  enter  directly  upon  a 
similar  transaction  himself.  Thus,  if  an  individual,  pretending  to 
be  the  agent  of  another,  should  enter  into  a  contract  for  the  sale 
of  laud  of  his  assumed  principal,  it  would  be  impossible  for  the 
latter  to  ratify  the  contract  if,  between  its  date  and  the  attempted 
ratification,  he  had  himself  disposed  of  the  property.  He  could 
not  defeat  the  intermediate  sale   made  by  himself,  and   impart 


110  Cases  on  Agency.  [Book  I 

validity  to  the  sale  made  by  the  pretended  ageut,  for  his  power 
over  the  property  or  to  contract  for  its  sale  would  be  gone.  So, 
also,  contracts  made  upon  an  assumed  agency  for  a  single  woman 
cannot  be  ratified  by  her  after  marriage,  without  the  consent  of 
her  husband,  for  her  power  to  contract  alone  ceases  with  her  mar- 
riage.    •     •    ♦ 

Note. — "An  individual  having  power  to  make  a  contract  may  ratify  or 
affirm  it,  when  made  by  one  who  without  authority  assumes  to  be  his  agent; 
but  if  the  individual  have  himself  no  such  power,  he  can  no  more  bind  him- 
Belf  retroactively  to  its  performance  by  afiOrmance  or  ratification  than  he 
could  have  done  so  prospectively  in  the  first  instance.  The  power  to  ratify 
ex  vi  termini  implies  a  power  to  have  made  the  contract,  and  the  power  to 
ratify  in  a  particular  manner  implies  the  power  to  have  made  the  contract 
in  that  manner."  Brady  vs.  Mayor,  etc.,  of  New  York,  16  How.  Pr.  (N.  Y.), 
432,  quoted  with  approval  in  Zottman  vs,  San  Francisco,  20  Cal.  96,  81  Am. 
Dec.  96.  So,  in  Calhoun  vs.  Millard  (1890),  121  N.  Y.  69,  81,  involving  the 
question  of  the  ratification  of  municipal  bonds,  it  is  said:  "  Municipal  cor- 
porations, since  they  possess  no  general  authority  to  issue  such  bonds,  can- 
not, by  recognition  or  subsequent  ratification,  validate  obligations  which 
they  had  no  power  to  create." 


II. 
WHAT   ACTS   MAT   BE   RATIFIED. 


(4  Allen,  447.) 

GREENFIELD  BANK  vs.  CRAFTS. 

f Supreme  Judicial  Court  of  Massachusetts,  September,  1862.  J 

This  was  an  action  upon  a  note  bearing  the  name  of  Thomas 
Crafts  as  joint  maker  with  Martin  Crafts,  and  three  drafts  drawn 
by  Martin  Crafts  and  bearing  the  name  of  Thomas  Crafts  as 
indorser.  There  was  evidence  tending  to  show  that  the  signatures 
of  Thomas  Crafts  were  forgeries.  Plaintiffs,  however,  claimed  that 
they  were  written  with  his  express  or  implied  authority;  that  the 
act  had  been  ratified  by  him;  and,  that  he  had  so  conducted  as  to 
lead  plaintiffs  to  believe  the  signatures  were  genuine  and  was  hence 
estopped  to  assert  the  contrary.  Other  facts  appear  in  the  opinion. 
The  verdict  was  for  the  plaintiff  upon  the  note  and  two  of  the 
drafts.     Both  parties  alleged  exceptions. 


Chap.  V]  Geeenfield  Bank  vs.  diAiTS.  Ill 

J.  Wells,  for  defendants. 
C.  Allen,  for  pluintiHs. 

Dewey,  J.  It  is  apparent  from  the  finding  of  the  jury,  that 
the  plaintiffs  failed  to  prove  that  the  Bignature  of  Thomas  Crafts' 
name  was  placed  upon  these  various  instruments  with  his  previous 
authority.  The  right  of  the  plaintiffs  to  maintain  their  verdict 
rests  upon  proof  of  ratification  and  adoption  by  Thomas  Crafts  of 
the  act  of  signing,  or  upon  the  ground  of  an  estoppel  to  deny  the 
signature  thereto,  by  reason  of  his  acts  in  reference  to  the  same, 
when  brought  to  his  knowledge. 

As  to  the  question  of  estoppel,  and  what  was  necessary  to  be 
shown  to  prove  such  estoppel,  the  court  adopted  the  instructions 
asked  for  by  the  defendants,  and  no  objection  under  that  head  can 
now  be  made  the  subject  of  inquiry,  unless  it  be  that  of  the  refusal 
of  the  court  to  adopt  the  ruling  asked  for  aa  to  the  sufficiency  of 
all  the  evidence  to  warrant  a  verdict  for  the  plaintiffs,  which  may 
be  the  subject  of  a  distinct  consideration. 

This  leaves  us,  as  the  first  and  most  important  question,  that 
which  arises  upon  the  rulings  asked  for  by  the  defendants  upon  the 
matter  of  adoption  and  ratification  by  Thomas  Crafts  of  the  use 
of  his  name  on  these  instruments.  The  case  was  put  to  the  jury 
under  instructions  that  the  plaintiffs  might  maintain  their  action, 
if  they  established  the  fact  of  an  adoption  and  ratification  of  the 
signatures  by  Thomas  Crafts,  the  judge  at  the  same  time  giving  to 
the  jury  full  and  proper  instructions  as  to  what  was  necessary  to 
be  shown  to  establish  such  adoption  and  ratification  in  the 
ordinary  cases  of  a  signature  of  a  note  without  a  previous  authority. 

But  it  is  now  nrged  on  the  part  of  the  defendants,  that  these 
signatures  were  incapable  of  such  adoption  or  ratification. 

As  to  this  objection,  it  is  clear  that  it  cannot  be  maintained 
upon  the  ground  of  the  form  of  the  signatures  merely.  This  form 
of  signature,  tliough  not  the  more  usual  manner  of  signing  by  an 
agent,  does  not  prevent  the  person  whose  name  is  placed  on  the 
note  from  being  legally  holden,  upon  proof  that  the  signature  was 
previously  authorized,  or  subsequently  adopted.  Various  similar 
cases  will  be  found,  where  the  party  has  been  charged,  where  the 
name  of  the  principal  appears  upon  the  note  accompanied  with  no 
indication  of  the  fact  of  its  having  been  signed  by  another  hand. 
It  was  so  in  Wntkins  vs.  Vince,  2  Stark.  R.  368;  in  Merrifield  va. 
Parritt,  11  Gush.  (Mass.)  591,  and  BrigJiam  vs.  Peters,  1  Gray, 


112  Cases  on  Aqeuot.  [Book  I 

(Mass.)  147.  "Wherever  sncli  signature  by  the  hand  of  another 
was  duly  authorized,  and  also  where  a  note  was  thus  executed 
under  an  honest  belief  by  the  party  signing  the  name  that  he  was 
thus  authorized  we  apprehend  that  there  can  be  no  doubt  that  it 
would  be  competent,  in  the  case  first  stated,  to  maintain  an  action 
upon  the  same,  upon  proof  of  the  previous  authority  thus  to  sign 
the  name,  or,  in  the  latter,  upon  proving  that  the  signature, 
although  at  the  time  unauthorized,  was  subsequently  adopted  and 
ratified  by  the  party  whose  name  appears  as  promisor.  ISTor  is  it 
necessary  to  establish  a  ratification,  that  there  has  been  any  previ- 
ous agency  created.  An  act  wholly  unauthorized  may  be  made 
valid  by  a  subsequent  ratification.  This  may  be  so,  although  the 
actor  was  an  entire  stranger  as  to  any  business  relations.  Culver 
V8.  AsMey,  19  Pick.  (Mass.)  301. 

The  only  question  upon  this  part  of  the  case  is,  whether  a  signa- 
ture, made  by  an  unauthorized  person  under  such  circumstances 
as  show  that  the  party  placing  the  name  on  the  note  was  thereby 
committing  the  crime  of  forgery,  can  be  adopted  and  ratified  by 
any  acts  and  admissions  of  the  party  whose  name  appears  on  the 
note,  however  full,  and  intentionally  made  and  designed  to  signify 
an  adoption  of  the  signature.  The  defendants  insist  that  it  cannot, 
by  such  evidence  as  would  in  other  cases  warrant  the  jury  in  find- 
ing an  adoption;  and  that  nothing  short  of  an  estoppel,  having 
the  element  of  actual  damage  from  delay  or  postponement,  occa- 
sioned by  the  acts  of  the  person  whose  name  is  borne  upon  the  note, 
misleading  the  holder  of  it,  will  have  this  effect.  As  to  the  person 
himself  whose  name  is  so  signed,  it  is  difiicult  to  perceive  any  sound 
reason  for  the  proposed  distinction,  as  to  the  effects  of  ratifying  an 
unauthorized  act,  in  the  two  supposed  cases. 

In  the  first  case,  the  actor  has  no  authority  any  more  than  in  the 
last.  The  contract  receives  its  whole  validity  from  the  ratification. 
It  may  be  ratified,  where  there  was  no  pretence  of  agency.  In  the 
other  case,  the  individual  who  presents  the  note  thus  signed  passes 
the  same  as  a  note  signed  by  the  promisor,  either  by  his  own 
proper  hand,  or  written  by  some  one  by  his  authority.  It  was 
clearly  competent,  if  duly  authorized,  thus  to  sign  the  note.  It  is, 
as  it  seems  to  us,  equally  competent  for  the  party,  he  knowing  all 
the  circumstances  as  to  the  signature  and  intending  to  adopt  the 
note,  to  ratify  the  same,  and  thus  confirm  what  was  originally  an 
unauthorized  and  illegal  act.  We  are  supposing  the  case  of  a  party 
acting  with  full  knowledge  of  the  manner  the  note  was  signed,  and 


Chap.  V]  Geeenfield  Bank  vs.  Ceafts.  113 

the  -want  of  anthority  on  the  part  of  the  actor  to  sign  his  name, 
but  who  nnderstandingly  and  miequivocally  adopts  the  signature, 
and  assumes  the  note  as  his  own.  It  is  difficult  to  perceive  why 
Buch  adoption  should  not  bind  the  party  whose  name  is  placed  on 
the  note  as  promisor,  as  effectually  as  i£  he  had  adopted  the  note 
when  executed  by  one  professing  to  be  authorized,  and  to  act  as  an 
agent,  as  indicated  by  the  form  of  the  signature,  but  who  in  fact 
had  no  authority. 

It  is,  however,  nrged  that  public  policy  forbids  sanctioning  a 
ratiiication  of  a  forged  note,  as  it  may  have  a  tendency  to  stifle  a 
prosecution  for  the  criminal  offense.  It  would  seem,  however,  that 
this  must  stand  upon  the  general  principles  applicable  to  other  con- 
tracts, and  is  only  to  be  defeated  where  the  agreement  was  upon 
the  understanding  that  if  the  signature  was  adopted  the  guilty 
party  was  not  to  be  prosecuted  for  the  criminal  offense. 

In  the  case  of  Forsyth  vs.  Day,  46  Maine,  176,  it  was  held  that 
there  might  be  a  ratitication  and  adoption  of  a  forged  note,  by  the 
person  whose  name  appears  as  promisor. 

We  perceive  no  valid  objections  to  the  ruling  of  the  court,  and 
instructions  given  to  the  jury  on  this  point. 

The  further  inquiry  is,  whether  the  court  properly  declined  to 
adopt  the  prayer  of  the  defendants,  that  the  court  should  rule  and 
instruct  the  jury  that  all  the  facts  proved  and  relied  upon  by  the 
plaintiffs  were  not  sufficient  to  amount  to  an  estoppel,  or  to  show 
such  an  adoption  of  the  signatures  by  Thomas  Crafts,  as  will 
warrant  a  verdict  for  the  plaintiffs. 

The  question  upon  this  point  is  not  whether  in  the  opinion  of 
the  court,  upon  the  facts  proved,  and  such  inferences  as  they 
might  draw  from  them,  the  verdict  should  have  been  returned  for 
the  defendants,  but  whether  there  were  not  such  facts  presented 
in  evidence  as  authorized  the  submission  of  the  case  to  the  jury, 
under  proper  instructions  from  the  court  as  to  the  law,  and  from 
which  facts  the  jury  might  infer  and  find  an  adoption  of  the  signa- 
tures. 

This  question,  though  presented  by  the  bill  of  exceptions,  seems 
hardly  raised  upon  the  brief  of  the  defendants. 

The  judge  was,  in  our  opinion,  authorized  to  submit  the  evi- 
dence that  had  been  introduced  to  the  jury,  under  proper  instruc- 
tions. The  evidence  was  not  of  that  decided  character  that  would 
exist  under  a  case  of  an  express  declaration  that  the  party 
8 


114  Oases  ok-  Agency.  [Book  I 

would  adopt  the  signature;  bnt  it  had  many  facts,  tending  to  sat- 
isfy the  jury  that  he  recognized  and  adopted  the  signatiires  as  his 
own,  and  assumed  the  liability  of  an  original  promisor.  There 
were  shown  the  relationship  of  Thomas  Crafts  to  the  party  who 
had  signed  his  name;  his  knowledge  of  various  similar  acts  on 
previous  occasions,  not  disclaimed  by  him;  his  silence  when  the 
claim  was  made  on  him,  as  the  party  liable  by  reason  of  such  sig- 
nature; his  statement  that  he  knew  that  the  paper  was  overdue 
and  ought  to  have  been  attended  to,  that  it  should  be  arranged  or 
settled,  and  that  he  had  property  enough  to  pay  all  the  notes,  but 
had  not  the  ready  money.  The  evidence  also  precluded  any  mis- 
take of  the  fact  on  his  part,  as  to  the  character  of  the  notes,  and 
whether  or  not  it  was  his  personal  signature  upon  them;  and  it  did 
not  therefore  present  the  case  of  admissions  or  silence  under  a  mis- 
taken belief  that  the  signatures  were  genuine.  In  this  respect,  a 
marked  difference  exists  between  the  present  case  and  that  of 
Hall  vs.  Huse,  10  Mass.  39.  In  that  case,  the  ground  of  defense 
was  wholly  that  of  a  mistake  on  the  part  of  the  defendant  as  to 
the  real  character  of  the  note.  He  had  supposed  the  note  to  bear 
a  genuine  signature  of  his,  and  all  his  acts  of  adoption  and  ratifi- 
cation proceeded  upon  that  false  assumption.  In  the  present  case, 
the  acts  and  admissions  of  the  defendant  were  with  full  knowledge 
that  the  signatures  were  not  in  his  hand-writing. 

In  addition  to  the  evidence  already  alluded  to,  thisre  was  evidence 
of  the  plaintiffs'  withholding  any  proceedings  to  enforce  their 
claims  against  other  parties,  after  the  alleged  adoption  of  the  sig- 
natures, and  the  fact  that  Martin  Crafts  left  his  place  of  residence 
for  the  time,  and  other  circumstances  to  be  considered  by  the  jury 
upon  the  questions  submitted  to  them. 

Without  expressing  any  opinion  upon  the  weight  of  the  evidence, 
BO  far  as  the  same  is  presented  by  the  bill  of  exceptions,  it  is  suffi- 
cient on  this  point  to  say,  that  the  case  was  properly  submitted  to 
the  jury  to  pass  upon. 

Defendants'  excej)tions    overruled. 

Note.— See  also  Hefner  vs.  Vandolah,  62  111.  483,  14  Am.  Rep.  106; 
Commercial  Bank  vs.  IVaTren,  15  N.  Y.  577;  Cravens  vs.  Oillilan,  63 
Mo.  28;  First  National  Bank  vs.  Gay,  63  Mo.  33;  Harper  vs.  Devene, 
10  La.  Ann.  724;  Wellington  vs.  Jackson,  121  Mass.  157;  Forsythe  va. 
Bonta,  5  Bush  (Ky.)  547, 

Contra. — See  following  case  and  notes. 


Chap.  V]  Henry  vs.  Hebb.  116 

(114  Indiana  275,  5  Am.   St.   Eep.   613.) 

HENRY  vs.   HEEB. 

f Supreme  Court  of  Judicature  of  Indiana,  November,  18S7.) 

R.  Conner,  H.  L.  Frost,  and  J.  I.  Little,  for  the  appellants. 
J.  F,  McKee,  and  D.  W.  McEee,  for  the  appellee. 

Mitchell,  0.  J.  This  was  a  suit  by  Nicholas  Heeb  against 
Henry  Heeb,  John  F.  Schonert,  and  James  D.  Henry,  to  recover 
the  amount  of  two  promissory  notes  signed  by  Heeb  and  Schonert, 
who  were  partners  as  principals,  and  by  James  D.  Henry  as  surety. 

The  controversy  is  between  the  plaintiff  and  the  appellant  Henry, 
and  relates  exclusively  to  the  note  described  in  the  second  para- 
graph of  the  complaint,  the  execution  of  which  Henry  denied 
tinder  oath.  To  the  denial  of  the  latter,  the  plaintiff  replied,  in 
substance,  that  the  defendant,  after  having  obtained  full  knowl- 
edge that  the  plaintiff  held  the  note  in  controversy,  ratified  and 
confirmed  the  same,  and  promised  to  pay  it,  and  accepted  a  chat- 
tel mortgage  covering  the  partnership  property  of  Heeb  and  Scho- 
nert, the  principal  debtors,  as  indemnity  against  any  liability 
which  might  exist  on  account  of  his  having  become  surety  on  the 
note.     This  was  held  to  be  a  suflBcient  reply. 

While  there  was  much  evidence  tending  to  prove  that  the  signa- 
ture of  Henry,  as  it  appeared  on  the  note,  was  his  genuine  signa- 
ture there  was  also  evidence  tending  to  prove  that  it  was  not 
genuine.  The  extent  to  which  the  evidence  went  in  that  regard 
was  to  affirm  the  genuineness  of  the  signature  on  the  one  hand,  and 
to  deny  it  on  the  other.  There  was  no  evidence  tending  to  incrim- 
inate any  particular  person,  or  directly  pointing  to  any  one  as  hav- 
ing perpetrated  the  crime  of  forgery  in  respect  to  the  appellant's 
signature.  Besides,  there  was  evidence  which  tended  to  show  that 
one  of  the  principal  makers  of  the  note  had,  with  the  appellant's 
consent,  filled  out  blank  notes,  which  had  been  previously  signed 
by  the  latter  as  surety,  and  upon  which  the  firm  subsequently 
obtained  loans  of  money. 

The  appellant  testified  that  he  neither  signed  nor  authorized  any 
one  to  sign  his  name  to  the  note,  "  to  the  best  of  his  knowledge." 

There  was  some  evidence  tending  to  show  that  Henry  recognized 
the  validity  of  the  note,  and  his  liability  to  pay  it,  and  that  he  had 


116  Cases  on  Agenct.  [Book  I 

knowledge  of  the  execution  of  a  chattel  mortgage  by  Sclionert  in 
the  firm  name  to  secure  him  and  other  creditors  of  the  firm,  and 
that  the  note  in  suit  was  one  of  the  claims  mentioned  in  the  mort- 
gage as  having  been  signed  by  Henry  as  surety  for  Heeb  and 
Schonert. 

Relevant  to  the  issue  made  by  the  plea  of  non  est  factum^  and 
the  reply  thereto,  and  the  evidence  pertaining  to  that  feature  of 
the  case,  the  court  instructed  the  jury,  in  substance,  that  if  the 
appellant,  after  having  obtained  full  knowledge  upon  the  subject 
of  whether  or  not  he  executed  the  note,  ratified  and  confirmed  the 
same,  aud  promised  to  pay  it,  he  would  be  liable  for  the  amount 
thereof.  The  judgnent  was  favorable  to  the  plaintiff  below.  The 
ruling  on  the  demurrer  to  the  reply,  and  the  giving  of  the  above 
instructions,  are  complained  of  as  a  cause  for  the  reversal  of  the 
judgment.  The  reply  and  the  instruction  present  substantially 
the  same  question. 

It  does  not  appear  that  the  promise  of  the  appellant  induced  the 
plaintiff  to  change  his  position  in  any  manner,  or  that  in  reliance 
thereon  he  surrendered  any  right  or  benefit  whatever.  There  is, 
therefore,  no  element  of  estoppel  in  the  case  as  presented  either  in 
the  pleading  or  in  the  instruction  of  the  court. 

The  appellant  contends  that  a  person  whose  name  has  been 
forged  to  a  note  cannot  ratify  or  adopt  the  criminal  act,  so  as  to 
become  bound,  unless  facts  have  intervened  which  create  an  estop- 
pel, and  preclude  him  from  setting  up  as  a  defense  that  his  signa- 
ture is  not  genuine.  There  appears  to  be  an  irreconcilable  conflict 
in  the  decisions  of  the  courts  of  last  resort  on  this  question.  Thus 
in  Wellington  vs.  Jackson,  121  Mass.  157,  the  supreme  judicial 
court  of  Massachusetts,  following  its  earlier  decisions,  held  that 
one  whose  signature  had  been  forged  to  a  promissory  note,  who  yet, 
with  knowledge  of  all  the  circumstances,  and  intending  to  be  bound 
by  it,  acknowledged  the  signature,  and  thus  assumed  the  note  as 
his  own,  was  bound  to  the  same  extent  as  if  the  note  had  been 
signed  by  him  originally,  without  regard  to  whether  or-  not  his 
acknowledgment  amounted  to  an  estoppel  m  jjais:  Greenfield  Bank 

vs.  Crafts,  4  Allen,  447  {ante );  Barilet  vs.  Tvckor,  104  Mass. 

336  (341);  6  Am.  Hep,  240.  To  the  same  effect  is  Hefner  vs.  Van- 
dolah,  62  111.  483,  14  Am.  Rep.  106;  Fitzpatrick  vs.  School  Com- 
missioners, 7  Humph.  224,  46  Am,  Dec.  76. 

There  are  other  cases  which,  while  seeming  to  lend  support  to  the 
doctrine  that  a  forged  signature  may  be  ratified,  nevertheless  turn 


Chap.  V  ]  Henet  vs.  Heeb.  117 

upon  the  proposition  that  the  holder  of  the  note  had  in  some  way 
acted  in  reliance  upon  the  promise  or  admission  of  the  person  whose 
name  appeared  on  the  note,  or  that  the  latter  had  received  or  partici- 
pated in  the  consideration  for  which  the  note  had  been  given,  and 
was  therefore  estopped  to  deny  the  genuineness  of  his  signature. 
Still  other  decisions  depend  upon  principles  which  distinguish  them 
from  cases  involving  the  doctrine  of  ratification  or  adoption  of 
forged  instruments  purely:  Casco  Bank  vs.  Keene,  53  Me.  103; 
Forsyth  vs.  Day,  46  Id.  176;  Corser  vs.  Paul,  41  N.  H.  24,  77  Am. 
Dec.  753;  Woodruff  vs.  Munroe,  33  Md.  146;  Union  Banh  vs. 
Micldleirooh,  33  Conn.  95;  Livings  vs.  Wiler,  32  111.  387;  Commer- 
cial Bank  vs.  Warren,  15  N.  Y.  577;  Crout  vs.  DeWoJf,  1  E.  I. 
393;  McEenzie  vs.  British  Linen  Co.,  L.  E.  6  App.  Gas.  82;  Fur- 
sylhe  vs.  Banta,  5  Bush,  548. 

It  is  a  well-established  rule  of  law  that  if  one,  not  assuming  to 
act  for  himself,  does  an  act  for  or  in  the  name  of  another  upon  an 
assumption  of  authority  to  act  as  the  agent  of  the  latter,  even 
though  without  any  precedent  authority  whatever,  if  the  person  in 
whose  name  the  act  was  performed  subsequently  ratifies  or  adopts 
what  has  been  so  done,  the  ratification  relates  back  and  supplies 
original  authority  to  do  the  act.  In  such  a  case  the  principal  is 
bound  to  the  same  extent  as  if  the  act  had  been  done  in  the  first 
instance  by  his  previous  authority,  and  this  is  so  whether  the  act 
be  detrimental  to  the  principal  or  to  his  advantage,  or  whether  it 
be  founded  in  tort  or  in  contract.  The  reason  is,  that  there  was 
an  open  assumj)tion  to  act  as  the  agent  of  the  party  who  subse- 
quently adopted  the  act.  The  agency  having  been  knowingly 
ratified,  the  ratification  becomes  equivalent  to  original  authority. 
Wilson  vs.  Tumman,  6  Man.  &  G.  236;  Smith  vs.  Tramel,  68 
Iowa,  488.  So,  if  a  contract  be  voidable  on  account  of  fraud 
practiced  on  one  party,  or  if  for  any  reason  it  might  be  avoided,  yet 
if  the  party  having  the  right  to  avoid  the  contract,  being  fully 
informed,  deliberately  confirms  or  ratifies  it,  even  though  this  be 
done  without  a  new  consideration,  and  after  acts  have  been  done 
which  would  have  released  the  person  affected,  the  party  thus  rati- 
fying is  thereby  precluded  from  obtaining  the  relief  he  otherwise 
might  have  had.      Williams  vs.  Boyd,  75  Ind.  286. 

The  ratification  or  adoption  of  a  forged  instrument,  or  of  a  con- 
tract which  is  prohibited  by  law,  or  made  in  violation  of  a  criminal 
statute  involves  altogether  different  principles.  One  who  commits 
the  crime  of  forgery  by  signing  the  name  of  another  to  a  promia- 


118  Cases  on  Agency.  [Book  I 

Bory  note  does  not  assume  to  act  as  the  agent  of  tlie  person  whose 
name  is  forged.  Upon  principle,  there  would  seem  to  be  no  room 
to  apply  the  doctrine  of  ratification  or  adoption  of  the  act  in  such 
a  case.  Where  the  act  done  constitutes  a  crime,  and  is  committed 
without  any  pretense  of  authority,  it  is  difficult  to  understand  how 
one  who  is  in  a  sense  the  victim  of  the  criminal  act  may  adopt  or 
ratify  it,  so  as  to  become  bound  by  a  contract  to  which  he  is  to  all 
intents  and  purposes  a  stranger,  and  which  as  to  him  was  conceived 
in  a  crime  and  is  totally  without  consideration.  As  has  been  well 
said,  it  is  impossible  in  such  a  case  to  attribute  any  motive  to  the 
ratifying  party  but  that  of  concealing  the  crime  and  suppressing 
the  prosecution:  **For  why  should  a  man  pay  money  without 
consideration  when  he  himself  had  been  wronged,  unless  con- 
strained by  a  desire  to  shield  the  guilty  party?" 

The  distinction  made  in  many  well-considered  cases  seems  to  be 
this:  Where  the  act  of  signing  constitutes  the  crime  of  forgery, 
while  the  person  whose  name  has  been  forged  may  be  estopped  by 
his  admissions,  upon  which  others  may  have  changed  their  rela- 
tions, from  pleading  the  truth  of  the  matter  to  their  detriment,  the 
act  from  which  the  crime  springs  cannot,  upon  considerations  of 
public  policy,  be  ratified  without  a  new  consideration  to  support  it. 
&hisler  vs.  Vandike,  92  Pa.  St.  447,  37  Am.  Kep.  703;  McHngh 
vs.  County  of  Schuylkill,  67  Pa.  St.  391,  5  Am.  Eep.  445;  Work- 
man vs.  Wriylit,  33  Ohio  St.  405,  31  Am.  Eep.  546,  and  note; 
Owsley  vs.  Philips,  78  Ky.  517;  Brooke  vs.  Hook,  24  L.  T.  34;  3 
Daniel  on  Negotiable  Instruments,  1351,  1353;  2  Randolph  on 
Commercial  Paper,  sec.  629. 

In  a  case  of  a  known  or  conceded  forgery,  we  are  unable  to  dis- 
cover any  principle  upon  which  a  subsequent  promise  by  the  person 
whose  name  was  forged  can  be  held  binding  in  the  absence  of  an 
estoppel  in  pais,  or  without  a  new  consideration  for  the  promise. 
Workman  vs.  Wright,  supra;  Oivsley  vs.  Philips,  supra. 

Notwithstanding  the  elaborate  argument  of  counsel,  our  conclu- 
sion is  that  neither  the  reply  nor  the  instructions  as  applied  to  the 
evidence  in  the  case  before  us  presents  the  question  of  the  ratifica- 
tion of  a  forged  instrument. 

The  case  was  contested  upon  the  one  side  on  the  theory  that  the 
signature  on  the  note  was  the  appellant's  genuine  signature. 
There  was  no  question  of  forgery  involved  in  the  case.  There  was 
no  evidence  pointing  to  the  crime  of  forgery  on  the  part  of  any 
one.     The  Question  was  whether  the  note  had  been  signed  bj  the 


Chap.  V]  Henry  vs.  Heeb.  119 

appellant,  or  by  some  one  duly  authorized  by  him.  For  anything 
that  appears  either  in  the  rej)ly  or  in  the  evidence,  it  may  as  well 
be  assumed,  if  the  appellant's  name  was  not  signed  by  himself  that 
it  was  signed  by  another  under  pretense  of  authority. 

As  we  have  seen,  if  the  appellant's  name  was  signed  by  some 
one  who  assumed  to  act  as  his  agent,  or  under  pretense  or  color  of 
authority,  ratification,  understandingly,  either  by  an  express  prom- 
ise to  pay,  or  by  accepting  a  chattel  mortgage  as  indemnity,  would 
be  equivalent  to  previous  authority. 

The  ratification  which  the  law  interdicts  relates  only  to  such  acts 
as  clearly  appear  to  have  been  done  in  violation  of  a  criminal  stat- 
nte,  the  motive  of  the  ratifying  party  being  presumably  the  con- 
cealment of  the  crime  or  the  suppression  of  its  prosecution.  Where, 
however,  as  in  the  present  case,  the  act  ratified  is  of  an  ambiguous 
cLaracter,  and  may  as  well  be  attributed  to  a  mistaken  assumption 
of  authority  as  to  a  purpose  to  commit  a  crime,  public  policy  does 
not  forbid  the  adoption  or  ratification  of  the  act;  nor  can  it  be  said 
to  be  without  consideration,  especially  where,  as  in  the  present  case, 
indemnity  has  been  accepted. 

These  conclusions  lead  to  an  aflBrmance  of  the  judgment.  Judg- 
ment affirmed,  with  costs. 

Note — See  also  Wilson  vs.  Hayes,  40  Minn.  531;  Williams  vs.  Bailey, 
L.  R.  1  H.  Lu  200. 


III. 

WHO    MAT    RATIFY. 


Ratification  by  state;  see  State  vs.  Torinus,  26  Minn.  1,  37  Am. 
Rep.  395. 

Ratification  by  corporations;  see  McArthur  vs.  Times  Printing 
Co.,  post.  128  ;  Bell's  Oap  R.  R.  Co.  vs.  Christy,  post.  p.  131. 

Ratification  by  municipal  corporations;  see  2'ow7i  of  Bruce  vs. 
Dickey,  116  111.  527. 

Ratification  by  infant;  see  Armitage  vs.  Widoe,  36  Mich.  124; 
Truehlood  vs.  TrueUood,  ante,  p.  29;  Patterson  vs.  Lippincott, 
post,  p. , 


120  Cases  on  Agekoy.  [Book  I 

(2  Wallace  24.) 

DRURY  vs.   FOSTER. 

C  United  States  Supreme  Court,  December,  I8G4.J 

Mrs.  Foster  executed  and  acknowledged  a  mortgage  on  land 
which  she  owned  with  the  name  of  the  mortgagee  and  amount  in 
blank,  and  entrusted  it  to  her  husband  to  secure  a  loan  for  a  few 
hundred  dollars.  Her  husband  borrowed  $12,800  of  Drury,  filling 
in  the  latter's  name  and  the  amount,  Drury  being  ignorant  that 
these  items  were  not  inserted  before  execution.  Mrs.  Foster 
was  ignorant  of  the  amount  borrowed  and  received  no  benefit  from 
it.  In  an  action  to  foreclose  the  mortgage,  she  set  up  these  facts 
on  a  defense  and  succeeded  in  the  court  below. 

Mr.  Pec/cham,  for  Drury. 
Mr.  Carlisle,  contra. 

Mr.  Justice  Nelsok  delivered  the  opinion  of  the  court.  By 
the  laws  of  Minnesota,  an  acknowledgment  of  the  execution  of  a 
deed  before  the  proper  officers,  privately  and  apart  from  her  hus- 
band, by  a  feme  covert,  is  an  essential  prerequisite  to  the  convey- 
ance of  her  real  estate  or  any  interest  therein.  And  she  is  disabled 
from  executing  or  acknowledging  a  deed  by  procuration,  as  she 
cannot  make  a  power  of  attorney. 

These  disabilities  exist  by  statute  and  the  common  law  for  her  pro- 
tection, in  consideration  of  her  dependent  condition,  and  to  guard 
her  against  undue  influence  and  restraint. 

Now,  it  is  conceded,  in  this  case,  that  the  instrument  Mrs.  Fos- 
ter signed  and  acknowledged  was  not  a  deed  or  mortgage;  that,  on 
the  contrary,  it  was  a  blank  paper;  and  that  in  order  to  make  it 
available  as  a  deed  or  mortgage,  it  must  be  taken  to  have  been 
signed  and  acknowledged  with  the  design  to  have  the  blanks 
filled  by  the  husband,  or  some  other  person,  before  the  delivery. 
We  agree — if  she  was  competent  to  convey  her  real  estate  by  sign- 
ing and  acknowledging  the  deed  in  blank,  and  delivering  the  same 
to  an  agent,  with  an  express  or  implied  authority  to  fill  up  the 
blank  and  perfect  the  conveyance — that  its  validity  should  not  well 
be  controverted.  Although  it  was  at  one  time  doubted  whether  a 
parol  authority  was  adequate  to  authorize  an  alteration  or  condi- 


Chap.  V]  Deuey  vs.  Fosteb,  121 

tion  to  a  sealed  instrnment,  the  better  opinion,  at  this  day,  is  that 
the  power  is  sufficient. 

But  there  are  two  insuperable  objections  to  this  view  in  the 
present  case.  First,  Mrs.  Foster  was  disabled  in  law  from  delegat- 
ing a  person,  either  in  writing  or  by  parol,  to  fill  up  the  blanks 
and  deliver  the  mortgage;  and  second,  there  could  be  no  acknowl- 
edgment of  the  deed  within  the  requisitions  of  the  statute  until  the 
blanks  were  filled  and  the  instrument  complete.  Till  then  there 
was  no  deed  to  be  acknowledged.  The  act  of  the  feme  covert  and  of 
the  officers  were  nullities,  and  the  form  of  acknowledgment  annexed 
as  much  waste  paper  as  the  blank  mortgage  itself,  at  the  time  of 
signing. 

It  is  insisted,  however,  that  Mrs.  Foster  should  be  estopped  from 
denying  that  she  had  signed  and  acknowledged  the  mortgage. 
The  answer  to  this  is,  that  to  permit  an  estoppel  to  operate  against 
her  would  be  a  virtual  repeal  of  the  statute  that  extends  to  her  this 
protection,  and  also  a  denial  of  the  disability  of  the  common  law 
that  forbids  the  conveyance  of  her  real  estate  by  procuration.  It 
would  introduce  into  the  law  an  entirely  new  system  of  conveyances 
of  the  real  property  of  feme  coverts.  Instead  of  the  transaction 
being  a  real  one  in  conformity  with  established  law,  conveyances, 
by  signing  and  acknowledging  blank  sheets  of  paper,  would  be  the 
only  formalities  requisite.  The  consequences  of  such  a  system  are 
apparent,  and  need  not  be  stated. 

There  is  authority  for  saying,  that  where  a  perfect  deed  has  been 
signed  and  acknowledged  before  the  proper  officer,  an  inquiry 
into  the  examination  of  the  feme  covert,  embracing  the  requisites  of 
the  statute,  as  constituting  the  acknowledgment,  with  a  view  to 
contradict  the  writing,  is  inadmissible;  that  acts  of  the  officer  for 
this  purpose  are  judicial  and  conclusive.  We  express  no  opinion 
upon  the  soundness  of  this  doctrine,  as  it  is  not  material  in  this 
case.  The  case  before  us  is  very  different.  There  is  no  defect  in 
the  form  of  the  acknowledgment,  or  in  the  private  examination. 
No  inquiry  is  here  made  into  them.  The  defect  is  in  the  deed, 
which  it  is  not  made  the  duty  of  this  officer  to  write,  fill  up  or 
examine,  and  for  the  legal  validity  of  which  he  is  in  no  way 
responsible.  The  two  instruments  are  distinct.  The  deed  may  be 
filled  up  without  any  official  authority,  and  may  be  good  or  bad. 
The  acknowledgment  requires  such  authority.  The  difficulty  here 
is  not  in  the  form  of  the  acknowledgment,  but  that  it  applied  to  a 
nonentity,  and  was  therefore  nugatory.      The  truth  is  that  the 


122  Cases  o:s  Agency,  [Book  I 

acknowledgment  in  this  case  might  as  well  have  been  taken  and 

made  on  a  separate  piece  of  paper,  and  at  some  subsequent  period 

attached  by  the  officer,  or  some  other  person,  to  a  deed  that  had 

never  been  before  the /erne  coverL     The  argument  in  support  of  its 

validity  would  be  equally  strong. 

Our  opinion  is  that,  as  it  respects  Mrs.  Foster,  the  mortgage  is 

not  binding  on  her  estate.         •         *         • 

Decree  affirmed. 

Note.— In  Allen  vs.  Withrow,  110  TJ.  S.  at  p.  128,  the  court  speaking 
of  a  similar  deed  say:  "  The  deed  in  blank  passed  no  interest,  for  it 
had  no  grantee.  The  blank  intended  for  the  name  of  the  grantee  was 
never  filled,  and  until  filled  the  deed  had  no  operation  as  a  conveyance.  It 
may  be,  and  probably  is,  the  law  in  Iowa,  as  it  is  in  several  States,  that  the 
grantor  in  a  deed  conveying  real  property,  signed  and  acknowledged,  with 
a  blank  for  the  name  of  the  grantee,  may  authorize  another  party,  by 
parol,  to  fill  up  the  blank.  Swartz  vs.  Ballou,  47  Iowa,  188,  29  Am.  Rep. 
470;  Van  Etta  vs.  Evenson,  23  Wis.  33,  9  Am.  Rep.  486;  Field  vs.  Stagg, 
52  Mo.  534,  14  Am.  Rep.  435.  As  said  by  this  court  in  Drury  vs.  Foster, 
2  Wall,  24  at  p.  33.  '  Although  it  was  at  one  time  doubted  whether  a  parol 
authority  was  adequate  to  authorize  an  alteration  or  addition  to  a  sealed 
instrument,  the  better  opinion  at  this  day  is,  that  the  power  is  sufficient.' 

But  there  are  two  conditions  essential  to  make  a  deed  thus  executed  in 
blank  operate  as  a  conveyance  of  the  property  described  in  it;  the  blank 
must  be  filled  by  the  party  authorized  to  fill  it,  and  this  must  be  done 
before  or  at  the  time  of  the  delivery  of  the  deed  to  the  grantee  named. 
Allen,  to  whom  it  is  stated  the  deed  was  handed,  with  authority  to  fill  the 
blank  and  then  deliver  the  deed,  gave  it  to  his  wife  without  filling  the 
blank  and  she  died  with  the  blank  unfilled." 


(75  Virginia,  168.) 

FOEBES  vs.   HAGMAN. 

("Court  of  Appeals  of  Virginia,  January,  18S1.) 

Action  for  false  imprisonment  brought  by  Hagman  and  others 
against  Forbes  and  Allers.  The  prosecution  complained  of  was 
instituted  by  one  David  Mann,  who  was  agent  of  defendants,  and 
grew  out  of  certain  contracts  which  Mann  had  made  with  the  plaint- 
iffs for  the  sale  to  him  of  bricks  manufactured  by  defendants. 
Plaintiffs  recovered  and  defendants  brought  error. 

Wise  &  Cosby  and  Quy  £  Gilliam,  for  appellants. 
Jos.  Bryan  and  John  B.  Young,  for  appellee. 


Chap.  V]  FoEBES  vs.  Haqman.  123 

Burks,  J.  ♦  •  ♦  The  defendants  resided  in  Baltimore, 
Maryland,  and  Mann,  who  resided  in  Virginia,  was  their  general 
agent  in  the  management  of  their  business,  including  the  collec- 
tion of  debts  in  this  State.  He  acted  by  their  authority  in  the 
institution  and  prosecution  of  the  proceeding  complained  of,  and 
they  are  as  responsible  for  his  conduct  in  the  matter  as  if  they  had 
acted  in  person.  His  acts  were  their  acts.  It  cannot  be  justly 
claimed  for  them  that  in  the  particular  matter  which  is  the  ground 
of  action  he  exceeded  his  authority,  and  that  therefore  they  are  not 
accountable;  for  it  distinctly  appears  that  after  they  had  been 
apprised  of  the  arrest  and  imprisonment  through  Mann's  agency, 
they  approved  and  adopted  what  had  been  done  by  him.  Indeed, 
before  any  contract  had  been  consummated  between  the  plaintiffs  and 
defendants  for  the  sale  and  delivery  of  the  bricks,  one  of  the  defend- 
ants (they  being  partners)  cautioned  their  agent  to  be  very  careful,  as 
"government  contractors,''  he  said,  "  were  often  slippery  fellows; " 
and  about  ten  days  after  the  arrest  he  came  to  Richmond,  and  was 
there  informed  by  the  agent  that  he  had  two  government  contractors 
(the  plaintiffs)  in  jail  at  the  suit  and  on  account  of  the  firm.  He 
made  no  inquiry  as  to  the  grounds  of  the  arrest,  gave  no  directions 
and  took  no  steps  for  their  relief  or  discharge,  but  merely  remarked 
'*  that  it  had  resulted  as  he  expected." 

This  was  a  virtual  ratification  and  adoption  of  what  had  been 
done  by  the  agent  on  the  principle  omnis  ratihahitio  retrotrahitur 
ef  mandato  priori  aequiparatur,  which  applies  as  well  to  a  tort, 
when  done  to  the  use  or  for  the  benefit  of  him  who  subsequently 
adopts  it,  as  to  a  matter  of  contract.  It  was  said  by  Lord 
OoKB  that  "  he  that  agreeth  to  a  trespass  after  it  is  done  is  no 
trespasser,  unless  the  trespass  was  done  to  his  use  or  for  his  benefit, 
and  then  his  agreement  subsequent  amounteth  to  a  commandment.** 
4  Inst.  317.  vSo  that  the  test  of  liability  in  such  a  case  is  said  to  be 
the  consideration  whether  the  act  was  originally  intended  to  be  done 
to  the  use  or  for  the  benefit  of  the  party  who  is  afterwards  said  to 
have  ratified  it.     Broom's  Leg.  Max.  837.  (Marg). 

Chief  Justice  TiNDALL,  in  Wilson  vs.  Tumman,  6  Man.  &  Gr. 
(46  Eng.  C.  L.  R.)  236,  states  the  rule  more  fully  thus:  "  That  an 
act  done  for  another  by  a  person  not  assuming  to  act  for  himself, 
but  for  such  other  person,  though  without  any  precedent  authority 
whatever,  becomes  the  act  of  the  principal  if  subsequently  ratified 
by  him,  is  the  known  and  well  established  rule  of  law.  In  that 
case  the  principal  is  bound  by  the  act,  whether  it  be  for  his  detri- 


124  Cases  Oif  Agekgy.  [Book  I 

ment  or  advantage,  and  whether  it  be  founded  on  a  tort  or  a  contract, 
to  the  same  extent  as  by  and  with  all  the  consequences  which  fol' 
low  from  the  same  act  done  by  his  previous  authority."  For  fur- 
ther illustrations  of  the  application  of  the  principle  see  Broom's 
Leg.  Max.  866  et  seg.;  Cooley  on  Torts,  127-131. 

The  case  of  Lewis  vs.  Bead,  13  Mees  &  Welsh.  834,  cited  by 
both  of  these  authors,  has  a  strong  bearing  on  the  case  in  judg- 
ment. As  stated,  a  landlord  authorized  bailiffs  to  distrain  for  rent 
dtfe  to  him  from  the  tenant  of  a  farm,  directing  them  not  to  take 
anything  except  on  the  demised  premises.  The  bailiffs  distrained 
cattle  of  another  person  (supposing  them  to  be  the  tenant's)  beyond 
the  boundary  of  the  farm;  the  cattle  were  sold,  and  the  landlord 
received  the  proceeds.  It  was  held  that  the  landlord  was  not  liable 
in  trover  for  the  value  of  the  cattle,  unless  it  were  found  by  the 
jury  that  he  ratified  the  act  of  the  bailiffs  with  the  knowledge  of  the 
iiTegularity,  or  that  he  chose,  without  inquiry,  to  take  the  risk 
upon  himself,  and  to  adopt  the  whole  of  their  acts. 

Now,  the  defendants  in  the  present  case  were  partners  in  busi- 
ness and  each  therefore  was  agent  for  the  other  in  the  partnership 
matters,  and  when  one  of  them  received  information  from  their 
common  agent,  that  the  latter  had  in  their  names  and 
for  their  use  and  benefit  instituted  a  suit  against  the  plaint- 
iffs and  caused  them  to  be  arrested  and  detained  in  prison, 
they  chose,  **  without  inquiry,"  (as  it  is  expressly  proved),  to  take 
the  risk  upon  themselves,  and  to  adopt  their  agent's  acts  as  their 
own.  They  certainly  ought  to  be  in  fact,  as  in  law  they  are,  bound 
by  these  acts.         •        *        ♦        ♦  Affirmed. 

NOTB — See  Chouteau  vs.  Ooddin,  39  Mo.  229,  90  Am.  Dec.  462;  Baldioin 
vs.  Leonard,  39  Vt  260,  94  Am.  Dec  324. 


(75  Michigan,  197.) 

THE  IRON  WOOD  STOEE  CO.  vs.  HARRISON  AND  GREEN. 

f Supreme  Court  of  Michigan,  June,  1889.J 

Assumpsit,  to  recover  for  goods  alleged  to  have  been  sold  and 
delivered  by  the  Store  Company,  a  corporation,  to  Harrison  and 
Green.     The  goods  were  ordered  by  one  Nickolson,  who,  as  the 


Chap.  V]  Stoee  Co.  vs.  HARRisoisr.  125 

plaintiff  alleged,  was  the  agent  of  defendants  for  that  purpose. 
There  was  some  testimony  offered  to  prove  such  agency,  but  plaintiff 
relied  chiefly  upon  an  alleged  ratification  of  his  acts. 
Plaintiff  recovered  and  defendants  bring  error. 

M.  M.  Riley,  for  appellant. 

Hammond  S  Buck  and  D,  E.  Corbett,  for  plaintiff. 

Champlin,  J.  (After  holding  that  the  statements  of  an  alleged 
agent,  made  in  a  matter  not  connected  with  his  principal,  have  no 
tendency  to  prove  such  agency,  and  that  orders  not  in  controversy 
drawn  by  the  alleged  agent  upon  other  parties,  without  the  knowl- 
edge of  the  alleged  principal  and  never  recognized  or  paid  by  him, 
have  no  such  tendency.)  The  main  question  turned  upon  the  con- 
troversy whether  Harrison  and  Green  had  ratified  the  act  of  Nick- 
olson  in  ordering  the  goods.  To  show  ratification,  the  plaintiff 
introduced  testimony  tending  to  show  that,  after  the  goods  had 
been  furnished,  plaintiff,  through  Atkinson,  presented  the  bill 
thereof  to  one  A.  D.  McDougal,  who  represented  himself  as  agent 
of  Harrison  &  Green. 

Atkinson  testified  that  he  jDresented  three  bills  to  McDougal, 
who  looked  them  over,  and  told  him  to  take  the  Guido  &  Warner 
bill  to  Nickolson,  and  have  him  0  K  it,  and  he  would  pay  it  the 
next  day;  that  he  did  present  the  bill  to  Nickolson,  and  he  marked 
it  **  0  K"  and  signed  his  name;  that  he  afterwards  saw  it  in  Har- 
rison &  Green's  office,  in  Bessemer,  0  K'd  by  Nickolson.  The 
bill  was  afterwards  produced  in  court  with  the  0  K  of  Nickolson 
upon  it.  Another  bill  called  the  ''  tie-bill,*'  McDougal  handed  to 
Mr.  Chamberlain  and  told  him  **to  see  to  that.''  For  the  small 
bill  of  $36.20,  v.'hich  had  been  ordered  by  McDougal,  he  told  him 
he  would  have  a  check  sent,  which  he  did.  It  was  admitted  upon 
the  trial  by  counsel  for  defendants  that  McDougal  was  agent  for 
Harrison  &  Green. 

Mr.  McDougal  was  also  sworn  as  a  witness  of  defendants,  and  he 
testified  that  in  April  and  May  that  he  was  superintendent  of  the 
South  Shore  Eoad  for  Harrison  &  Green;  that  his  authority  was 
to  represent  them  in  everything  connected  with  the  construction 
of  the  road.  "Whenever  it  was  necessary  to  obtain  supplies,  he  was 
to  get  them. 

The  plaintiff  claims  that  this  testimony  tends  to  prove  a  ratifi- 
cation by  Harrison  &  Green,  through  their  agent  McDougal,  and 
by  his  promise  to  pay,  plaintiff  has  been  lulled  into  security,  when 


126  Cases  on  Agen-cy.  [Book  I 

it  might  have  commenced  its  attachment  suit  sooner,  as  Harrison 
&  Green  were  non-residents. 

In  some  cases  an  agent  may  ratify  the  unauthorized  act  of  another 
agent;  as — 

**  Where  the  act  which,  when  done  by  one  agent,  was  unauthor- 
ized, is  within  the  general  power  of  another  agent  of  the  same 
principal,  the  doing  of  the  act  by  the  first  agent  may  be  ratified 
by  the  second/'    Mechem  Ag.  sec.  121. 

Eatification  by  an  agent  depends  upon  certain  facts,  which  must 
afiirmatively  be  made  to  appear: 

"  1.  The  agent  ratifying  must  have  had  general  power  to  do  him- 
self the  act  which  he  ratifies. 

*'  2.  They  must  both  be  agents  of  the  same  principal,  and  the 
agent  whose  act  is  in  question  must  have  professed  to  act  as  agent 
of  the  common  principal." 

A  stranger  to  a  party,  acting  without  authority,  may  do  an  act 
in  the  name  of  another,  which  that  other  may  ratify,  and  so  make 
it  his  own.  But  his  general  agent  has  no  such  authority  to  ratify 
the  act  of  a  stranger  done  in  the  name  of  the  principal,  unless 
power  of  appointing  agents  has  been  delegated  to  him  by  his  prin- 
cipal. He  cannot  ratify  without  making  the  person  for  that  act  or 
occasion  the  agent  of  the  principal,  and  this  is  beyond  his  general 
powers  as  agent. 

Nickolson  did  not  represent  himself  to  plaintiff  as  being  an  agent 
for  defendants.  There  is  no  testimony  in  the  case  tending  to 
show  that  Nickolson  at  the  time  he  purchased  the  supplies  was  the 
agent  of  defendants.  The  act,  so  far  as  Harrison  &  Green  are  con- 
cerned, was  the  act  of  a  stranger  muking  the  purchase  without 
authority  from  them,  and  not  even  in  their  name.  McDougal, 
therefore,  had  no  authority  to  ratify  or  bind  Harrison  &  Green  by 
any  promise  of  payment.  Nor  could  he  estop  the  defendants  from 
denying  their  liability  by  promising  to  pay,  if  Nickolson  would  0. 
K.  the  account.  We  think  the  case  comes  within  the  principles 
of  the  following  cases:  Wells  is  Marlin,  32  Mich.  4T8;  Danaher 
vs.  Oarlock,  33  Id.  295;  Frost  vs.  Laiuler,  34  Id.  235;  Uammer- 
slough  vs.  Cheatham,  84  Mo.  13. 

It  follows  that  the  judgment  must  be  reversed,  and  a  new  trial 
granted. 

Note— See  Trtuio  vs.  Anderson,  10  Mich.  857,  81  Am.  Dec.  795;  Penn  vs. 
Evans,  28  La.  Ann.  51 Q;  Palmer  vs.  Cheney,  85  Iowa,  281;  Mound  City 


Chap.  V]  FosTEE  vs.  Bates^  127 

Mut.  L.  Ins.  Co.  vs.  Exith,  49  Ala.  530;  Cairo,  etc.,  R.  R.  Co.  vs.  Mnhoney, 
82  111.  73,  25  Am.  Eep.  299;  Toledo,  etc.,  U.  H.  Co.  vs.  Rodrigues,  47  IlL 
188,  95  Am.  Dec.  4^4. 


IV. 

CONDITIONS    OF    RATIFICATI02?, 


(12  Meeson  &  Welsby,  225.) 

FOSTER,  ADMR.  vs.   BATES. 

f English  Court  of  Exchequer,  November,  1S4S.J 

Assumpsit  by  plaintiff  as  administrator  of  one  Pollard,  deceased, 
for  goods  sold  and  delivered  by  the  intestate,  and  also  for  goods 
Bold  and  delivered  by  the  plaintiff  after  his  death  and  before  admin- 
istration was  granted.  Verdict  for  plaintiff  with  leave  to  defend- 
ants to  move  for  non-snit,  which  was  done. 

W.  H.  Watson  &  Greenwood,  contra. 
Hoggins  and  Kelly,  for  the  motion. 

Pakke,  B.  In  this  case,  which  was  argued  a  day  or  two  ago,  we 
delayed  giving  our  judgment,  not  on  account  of  any  doubt  we 
entertained  at  the  time,  but  in  order  that  we  might  refer  to  the 
several  authorities  cited  at  the  bar.  We  are  of  the  opinion  that 
the  rule  to  enter  a  non-suit  must  be  discharged.  The  only  question  is 
whether  the  plaintiff  could  sue  for  goods  sold  and  delivered  by  him 
as  administrator  of  one  Pollard,  upon  the  facts  which  were  in  evi- 
dence on  the  trial.  It  appeared  that  the  goods  were  sold  after  the 
death  of  the  intestate,  and  before  the  grant  of  letters  of  adminis- 
tration, by  one  who  had  been  the  agent  of  the  deceased  on  the 
coast  of  Africa;  and  that  they  were  there  sold  avowedly  on  account 
of  the  estate  of  the  intestate. 

It  is  clear  that  the  title  of  an  administrator,  though  it  docs  not 
exist  until  the  grant  of  administration,  relates  back  to  the  time  of 
the  death  of  the  intestate;  and  that  he  may  recover  against  a  wrong 
doer  who  has  seized  or  converted  the  goods  of  the  intestate  after 
his  death,  in  an  action  of  trespass  or  trover.  All  the  authorities  on 
this  subject  were  considered  by  the  Court  of  Common  Pleas,  in  the 
case  of  T/iorpe  vs.  Stall  wood,  12  Law  J.  N.  S.  241,  where  an 
action  of  trespass  was  held  to  be  maintainable.     The  reason  for 


128  Cases  o:s  Agency.  [Book  I 

this  relation  given  by  Rolle,  C.  J.,  in  Lo?ig  vs.  Belly  St3^1es,  341, 
is  that  other-wise  there  would  be  no  remedy  for  the  wrong  done. 

The  relation  being  established  for  the  benefit  of  the  intestate's 
estate  against  a  wrong-doer,  we  do  not  see  why  it  shonld  not  bo 
equally  available  to  enable  the  administrator  to  obtain  the  bene- 
fit of  a  contract  intermediately  made  by  suing  the  contracting 
party;  and  cases  might  be  put  in  which  the  right  to  sue  on  the 
contract  would  be  more  beneficial  to  the  estate  than  the  right  to 
recover  the  value  of  the  goods  themselves.  In  the  present  case, 
there  is  no  occasion  to  have  recourse  to  the  doctrine  that  one  may 
waive  a  tort  and  recover  on  a  contract;  for  here  the  sale  was  made 
by  a  person  who  intended  to  act  as  agent  for  the  person,  whoever 
he  might  happen  to  be,  who  legally  represented  the  intestate's 
estate;  and  it  was  ratified  by  the  plaintiff,  after  he  became  admin- 
istrator; and,  when  one  means  to  act  as  agent  for  another,  the  sub- 
sequent ratification  by  the  other  is  always  equivalent  to  a  prior 
command;  nor  is  it  any  objection  that  the  intended  principal  was 
unknown,  at  the  time,  to  the  person  who  intended  to  be  the  agent; 
the  case  of  Hull  vs.  PicTcersgill,  1  Bro.  and  B.  282,  cited  by  Mr. 
Greenwood,  being  an  authority  for  that  position.  We  are,  there- 
fore, of  the  opinion  that  the  plaintiff  is  entitled  to  recover. 

Eule  discharged. 


(48  Minnesota,  319,  31  Am.  St.  Rep.  653.) 

McARTHUR  vs.  TIMES  PRINTING  COMPANY. 

("Supreme  Court  of  Minnesota,  February,  1892.) 

Action  by  D.  A.  McArthur  against  the  Times  Printing  Company 
to  recover  damages  for  a  breach  of  contract.  Judgment  for  plaint- 
iff.    Defendant  appeals. 

George  F.  Edwards,  for  appellant. 

F.  B.  Wright,  for  respondent. 

Mitchell,  J.  The  complaint  alleges  that  about  October  1, 1889, 
the  defendant  contracted  with  plaintiff  for  his  services  as  advertis- 
ing solicitor  for  one  year;  that  in  April,  1890,  it  discharged  him,  in 
violation  of  the  contract.  The  action  is  to  recover  damages  for  the 
breach  of  the  contract.  The  answer  sets  up  two  defenses:  (1)  That 
plaintiff's  employment  was  not  for  any  stated  time,  but  only  from 


Chap.  V]       Mc Arthur  vs.  Times  Priktii^g  Co.  1^9 

week  to  week;  (2)  that  he  was  discharged  for  good  cause.  Upon 
the  trial  there  was  evidence  reasonably  tending  to  prove  that  in 
September,  1889,  one  C.  A.  Nimocks  and  others  were  engaged  as 
promoters  in  procuring  the  organization  of  the  defendant  company 
to  publish  a  newspaper;  that,  abont  September  12th,  Nimocks,  as 
such  promoter,  made  a  contract  with  plaintiH,  in  belialf  of  the  con- 
templated company,  for  his  services  as  advertising  solicitor  for  the 
period  of  one  year  from  and  after  October  1st,— the  date  at  which 
it  was  expected  that  the  company  would  be  organized;  that  the 
corporation  was  not,  in  fact,  organized  until  October  IGth,  but  that 
the  publication  of  the  paper  was  commenced  by  the  promoters 
October  1st,  at  which  date  plaintiff,  in  pursuance  of  his  arrange- 
ment with  Nimocks,  entered  upon  the  discharge  of  his  duties  as 
advertising  solicitor  for  the  paper;  that  after  the  organization  of 
the  company  he  continued  in  its  emploj^ment  in  the  same  capacity 
until  discharged,  the  following  April;  that  defendant's  board  of 
directors  never  took  any  formal  action  with  reference  to  the  con- 
tract made  in  its  behalf  by  Nimocks,  but  all  of  the  stockholders, 
directors,  and  officers  of  the  corporation  knew  of  this  contract  at 
the  time  of  its  organization,  or  were  informed  of  it  soon  afterwards, 
and  none  of  them  objected  to  or  repudiated  it,  but,  on  the  contrary, 
retained  plaintiff  in  the  employment  of  the  company  without  any 
other  or  new  contract  as  to  his  services. 

There  is  a  line  of  cases  which  hold  that  where  a  contract  is  made 
in  behalf  of,  and  for  the  benefit  of,  a  projected  corporation,  the 
corporation,  after  its  organization,  cannot  become  a  party  to  the 
contract,  either  by  adoption  or  ratification  of  it.  Ahhott  vs.  Eap- 
good,  150  Mass.  248,  15  Am.  St.  Eep.  193;  Beach,  Corp.  §  198. 
This,  however,  seems  to  be  more  a  question  of  name  than  of  sub- 
stance; that  is,  whether  the  liability  of  the  corporation,  in  such 
cases,  is  to  be  placed  on  the  grounds  of  its  adoption  of  the  contract 
of  its  promoters,  or  upon  some  other  ground,  such  as  equitable 
estoppel.  This  court,  in  accordance  with  what  we  deem  sound 
reason,  as  well  as  the  weight  of  authority,  has  held  that,  while  a 
corporation  is  not  bound  by  engagements  made  on  its  behalf  by  its 
promoters  before  its  organization,  it  may,  after  its  organization, 
make  such  engagements  its  own  contracts.  And  this  it  may  do 
precisely  as  it  might  make  similar  original  contracts;  formal  action 
of  its  board  of  directors  being  necessary  only  where  it  would  be 
necessary  in  the  case  of  a  similar  original  contract.  That  it  is  not 
9 


130  Cases  on  Ages-oy.  [Book  I 

requisite  that  snch  adoption  or  acceptance  be  express,  but  it  may 
be  inferred  from  acts  or  acquiescence  on  the  part  of  the  corporation, 
or  its  authorized  agents,  as  any  similar  original  contract  might  be 
ehown.  Battelle  vs.  Pavement  Co.,  37  Minn.  89.  See,  also,  Mor. 
Corp.  §  548.  The  right  of  the  corporate  agents  to  adopt  an  agree- 
ment originally  made  by  promoters  depends  upon  the  purposes  of 
the  corporation  and  the  nature  of  the  agreement.  Of  course,  the 
agreement  must  be  one  which  the  corporation  itself  could  make, 
and  one  which  the  usual  agents  of  the  company  have  express  or 
implied  authority  to  make.  That  the  contract  in  this  case  was  of 
that  kind  is  very  clear;  and  the  acts  and  acquiescence  of  the  cor- 
porate officers,  after  the  organization  of  the  company,  fully  justified 
the  jury  in  finding  that  it  had  adoj)ted  it  as  its  own. 

The  defendant,  however,  claims  that  the  contract  was  void  under 
the  statute  of  frauds,  because,  **by  its  terms,  not  to  be  performed 
within  one  year  from  the  making  thereof,"  which  counsel  assumes 
to  be  September  12th, — the  date  of  the  agreement  between  plaint- 
iff and  the  promoter.  This  proceeds  upon  the  erroneous  theory 
that  the  act  of  the  corporation,  in  such  cases,  is  a  ratification,  which 
relates  back  to  the  date  of  the  contract  with  the  promoter,  under 
the  familiar  maxim  that  "a  subsequent  ratification  has  a  retro- 
active effect,  and  is  equivalent  to  a  prior  command."  But  the 
liability  of  the  corporation,  under  such  circumstances,  does  not  rest 
upon  any  principle  of  the  law  of  agency,  but  upon  the  immediate 
and  voluntary  act  of  the  company.  Although  the  acts  of  a  corpo- 
ration with  reference  to  the  contracts  made  by  promoters  in  its 
behalf  before  its  organization  are  frequently  loosely  termed  ''ratifi- 
cation," yet  a  ''ratification,"  properly  so  called,  implies  an  existing 
person,  on  whose  behalf  the  contract  might  have  been  made  at  the 
time.  There  cannot,  in  law,  be  a  ratification  of  a  contract  which 
could  not  have  been  made  binding  on  the  ratifier  at  the  time  it 
was  made,  because  the  ratifier  was  not  then  in  existence.  In  re 
Empress  Eng.  Co.,  16  Ch.  Div.  128;  MeUiado  vs.  Railway  Co.,  L. 
E.  9  C.  P.  505;  Kclner  vs.  Baxter,  L.  R.  2  0.  P.  185.  What  is 
called  "  adoption,"  in  such  cases,  is,  in  legal  effect,  the  making  of 
a  contract  of  the  date  of  the  adoption,  and  not  as  of  some  former 
date.  The  contract  in  this  case  was,  therefore,  not  within  the 
statute  of  frauds.  The  trial  court  fairly  submitted  to  the  jury  all 
the  issues  of  fact  in  this  case,  accompanied  by  instructions  as  to 
the  law  which  were  exactly  in  the  line  of  the  views  we  have 
expressed;  and  the  evidence  justified  the  verdict. 


Cliap.  V]       McArthub  ts.  Times  Peintikg  Co.  131 

The  point  is  made  that  plaintiff  should  have  alleged  that  the 
contract  was  made  with  Nimocks,  and  subsequently  adopted  by  the 
defendant.  If  we  are  correct  in  what  we  have  said  as  to  the  legal 
effect  of  the  adoption  by  the  corporation  of  a  contract  made  by  a  pro- 
moter in  its  behalf  before  its  organization,  the  plaintiff  properly 
pleaded  the  contract  as  having  been  made  with  the  defendant.  But 
we  do  not  find  that  the  evidence  was  objected  to  on  the  ground  of 
a  variance  between  it  and  the  complaint.  The  assignments  of 
error  are  very  numerous,  but  what  has  been  already  said  covers  all 
that  are  entitled  to  any  special  notice. 

Order  affirmed. 

Note— See  following  case  and  notea. 


(79  Pennsylvania  State,  54,  21  Am.  Rep.  39.) 

BELL'S  GAP  EAILEOAD   COMPANY  vs.  CHRISTY. 

f Supreme  Court  of  Pennsylvania,  October,  1875  J 

Action  of  assumpsit  to  recover  money  expended  by  plaintiff  in 
procuring  the  charter  of  the  defendants,  in  payment  of  surveyors, 
etc.,  in  making  explorations  and  running  the  line  of  their  road, 
etc.,  and  also  for  his  own  services  in  the  same  matter.  The  whole 
occurred  before  the  corporation  came  into  existence,  but  plaintiff 
claimed  that  the  defendants  having  accepted  the  results  of  his 
work,  etc.,  they  became  liable  to  pay  him. 

D.  J.  Neff,  for  plaintiff  in  error. 

8.  8.  Blair,  for  defendant  in  error. 

Paxson,  J.  This  case  lacks  all  the  elements  of  a  contract,  either 
express  or  implied.  The  most  that  it  amounts  to  is  the  expenditure 
by  the  plaintiff  of  a  certain  amount  of  his  time  and  money  in  the 
furtherance  of  the  scheme  of  constructing  a  railroad.  He  attended 
meetings;  visited  Harrisburg  for  the  purpose  of  obtaining  a  charter; 
assisted  in  making  a  preliminary  survey,  and  paid  some  of  the 
expenses  thereof.  There  was  no  contract  with  anyone  for  the  pay- 
ment of  his  services,  beyond  the  statement  of  some  of  the  parties 
interested  in  the  project  that  they  would  see  him  paid.     All  this 


132  Cases  on  Agen"ct.  [Book  I 

was  prior  to  the  charter,  or  to  any  organization  of  the  company. 
The  road  which  the  plaintiff  had  in  view  when  he  made  the  survey, 
as  appears  from  his  own  testimony,  was  a  hroad  gauge  road,  to  run 
from  Bell's  Mills  to  Erie,  and  he  evidently  relied  u]3on  aid  from 
New  York  capitalists  to  build  it,  with  the  expectation  of  retaining 
an  important  position  in  the  company.  He  did  not  succeed  in 
obtaining  the  required  aid,  and  the  road  to  Erie  was  never  con- 
structed or  even  commenced.  Instead  thereof,  a  short  local 
narrow-guage  road,  called  the  Bell's  Gap  Eailroad,  was  built,  with 
the  object  in  part  to  develop  certain  coal  lands  in  the  vicinity.  The 
stock  was  principally  taken  in  the  neighborhood.  The  plaintiff, 
and  others  interested  with  him,  were  among  those  named  as  cor- 
porators in  the  act  incorporating  the  company,  but  they  failed  to 
obtain  the  control  of  the  organization.  Subsequently,  the  plaintiff 
brought  suit  against  the  company  to  recover  compensation  for  his 
services,  as  before  stated,  claiming  that  the  company  were  bound 
by  the  promises  of  the  original  projectors  of  the  enterprise,  inas- 
much as  said  company  had  accepted  the  result  of  his  labors  and 
enjoyed  its  benefits. 

None  of  the  cases  cited  by  the  defendant  in  error  sustains  his 
position.  The  Erie  <&  Waterford  Planhroad  Company  vs.  Brown, 
25  Pa.  St.  156;  and  the  Bedford  Railroad  Company  vs.  Boioser, 
48  Id.  29,  were  snits  upon  subscriptions  to  stock.  The  case  of 
the  Edinhoro'  Academy  vs.  RoMnson,  37  Penn.  St.  210,  78  Am. 
Dec.  421,  was  a  subscription  in  aid  of  an  academy.  There  is  not 
the  slightest  analogy  between  either  of  these  cases  and  the  one 
under  consideration.  In  Preston  vs.  The  Liverpool,  e^c.  Junc- 
tion Railroad  Company,  1  Sim.  (N.  S.)  586,  7  Eng,  Law 
&  Eq.  Eep.  124,  the  contract  was  between  the  plaintiff  and 
an  organized  company.  This  was  a  case  where  the  projectors 
agreed  to  pay  the  complainant  £5,000  for  the  land  to  be  taken  for 
the  railway  and  incidental  damages,  and  the  plaintiff  thereupon 
assented  that  his  land  should  be  so  taken.  The  agreement  was  in 
writing  between  the  plaintiff  and  the  executive  directors  of  Lanca- 
shire &  North  Yorkshire  Eailway  Company,  which  was  after 
united  with  another  rival  enterprise,  under  the  name  of  the 
defendant  corporation,  and  the  two  companies  agreed  to  adopt  the 
contract  with  the  plaintiff.  It  is  true  the  company  had  not  yet 
obtained  its  charter,  but  it  was  still  an  organization  in  esse,  had 
a  board  of  directors  who  assumed  to  make  contracts  binding  upon 
the  company  when  it  should  become  thereafter  fully  clothed  with 


Chap.  V]       Bell's  Gap  E.  E.  Co.  vs.  Ciikisty.  133 

corporate  powers.  In  Loto  v.  The  llailroad  Company,  46  N.  H. 
(1  Hadley)  375,  a  charter  had  been  obtained  and  the  Bervices  for 
which  the  suit  was  brought  were  rendered  in  promoting  the  organ- 
ization of  the  company  under  the  charter,  procuring  subscriptions 
to  the  capital  stock,  etc.  It  was  held  by  the  court  in  that  case  that, 
*'  where,  after  the  charter  and  before  the  organization  of  a  corpor- 
ation, services  are  rendered  which  are  necessary  to  complete  the 
organization,  and  after  it  has  been  perfected,  the  corjDoration  electa 
to  take  the  benefit  of  such  services,  knowing  that  they  were  ren- 
dered with  the  understanding  that  compensation  was  to  be  made, 
it  will  be  held  liable  to  pay  for  the  services  upon  the  ground  that 
it  must  take  the  burden  with  the  benefit;  but  that  '  no  promise  to 
p:iy  would  be  implied  from  the  fact  that  such  services  were  ren- 
dered at  the  request  of  any  number  of  the  corporators  less  than  a 
majority.''* 

We  do  not  desire  to  controvert  the  principle,  established  in  Eng- 
land, and  to  some  extent  recognized  in  this  country,  that  when 
the  projectors  of  a  company  enter  into  contracts  in  behalf  of  a  body 
not  existing  at  the  time,  but  to  be  called  into  existence  afterward, 
then  if  the  body  for  whom  the  projectors  assumed  to  act  does 
come  into  existence,  it  cannot  take  the  benefit  of  the  contract 
without  performing  that  part  of  it  which  the  projectors  undertook 
that  it  should  perform.  Conceding  to  this  principle  its  full  force 
and  eHect,  we  are  unable  to  see  its  application  to  the  facts  of  this 
case.  It  may  very  well  be  that  where  a  number  of  persons  not 
incorporated  are  yet  informally  associated  together  in  the  pursuit  of 
a  common  object,  and  with  the  intent  to  procure  a  charter  in  the 
furtherance  of  their  design,  they  may  authorize  certain  acts  to  be 
done  by  one  or  more  of  their  number,  with  an  understanding  that 
compensation  shall  be  made  therefor  by  the  company  when  fully 
formed.  And  if  such  acts  are  necessary  to  the  organization  and 
its  objects,  and  are  subsequently  accepted  by  the  company,  and 
the  benefits  thereof  enjo}  ed  by  them,  they  must  take  such  benefits 
cum  onere,  and  make  compensation  therefor.  But  the  projectors 
or  promoters  of  the  enterprise  within  the  meaning  of  the  rule 
referred  to  evidently  must  be  a  majority  at  least  of  such  persons, 
and  not  one,  two,  or  three,  or  a  small  minority  thereof.  Such 
minority  can  have  no  more  authority  to  bind  the  association  or 
corporation  in  its  incipient  or  inchoate  condition  than  they  would 
have  to  bind  it  if  fully  organized. 

In  this  case  the  two  or  three  persons  who,  it  is  alleged,  promised 


134  Cases  on  Agency.  [Book  I 

the  plaintiff  to  see  him  paid,  honnd  no  one  but  themselves.  They 
had  no  authority  to  speak  for  anyone  else.  In  the  absence  of  any 
snch  authority  and  of  any  satisfactory  proof  that  the  restilt  of  the 
plaintiff's  labor  and  expenditure  was  accepted  and  enjoyed  by  the 
corporation,  that  it  used  the  plaintiff's  survey  or  located  its  road 
upon  any  considerable  portion  of  the  line  thereof,  the  court  below 
should  have  instructed  the  jury  that  the  defendants  were  not  liable. 

It  is  to  be  observed  that  in  all  the  cases  which  were  brought  to 
the  attention  of  the  court,  the  services  were  either  performed  after 
the  charter  had  been  obtained,  and  there  was  therefore  an  inchoate 
corporation,  or  there  was  an  informal  organization,  as  in  the 
case  cited  in  7  Eng.  Law  &  Eq.  Eep.,  preparatory  to  obtaining  a 
charter,  and  the  employment  was  authorized  by  the  organization 
as  such,  and  was  not  the  mere  employment  by  individuals  having 
no  authority,  express  or  implied,  to  contract  for  any  one.     *    *    * 

The  judgment  is  reversed  and  a  venire  facias  de  novo  awarded. 

Note— In  Rod- ford,  etc.,  R.  R.  Co.  vs.  Sage,  (1872)  65  lU.  328,  16  Am. 
Eep.  587,  it  is  said — 

•'  For  services  and  expenses  before  the  organization  of  the  company, 
which,  subsequently,  the  company  acccepts  and  receives  the  benefit  of  and 
promises  to  pay  for,  we  will  not  say  that  a  party  might  not  recover,  in  vir- 
tue of  such  express  promise;  but  we  are  disposed  to  deny  the  right  of 
recovery  for  such  services  and  expenses  upon  any  implied  promise  resulting 
from  the  fact,  although  the  case  cited  by  appellant's  counsel,  of  Low  vs. 
Conn.  Passumpsic  Ricer  R.  R.  Co.,  46  N.  H.  284,  seems  to  sanction  such  a 
right  of  recovery;  as  does  also  the  case  of  Hall  vs.  Vt.  &  3Iass.  R.  R.  Co., 
28  Vt.  401,  as  respects  services  rendered  subsequent  to  the  act  of  incorpora- 
tion, and  prior  to  perfecting  the  organization  of  the  company,  but  not  for 
services  rendered  prior  to  the  act  of  incorporation. 

"  A  right  of  recovery  against  a  coi-poration,  for  anything  done  before  it 
had  a  proper  existence,  does  not  appear  to  rest  upon  any  veiy  satisfactory 
legal  principle. 

♦'It  appears  more  reasonable  to  hold  any  services  performed  or  expenses 
incurred  prior  to  the  organization  of  a  corporation,  to  have  been  gratuitous, 
in  view  of  the  general  good  or  private  benefit  expected  to  result  from  the 
object  of  the  corporation.  It  seems  unjust  to  stockholders,  who  subscribe 
and  pay  for  stock  in  a  company,  that  their  property  should  be  subject  to  the 
incumbrance  of  such  claims,  and  which  they  had  no  voice  in  creating. 

"  N.  Y.  &  N.  II.  R.  R.  Co.  vs.  Ketchum,  27  Conn.  170,  is  an  authority 
which  denies  the  liability  of  a  corporation  on  account  of  services  rendered 
prior  to  the  perfecting  of  its  organization;  and  we  accept  the  authority  of 
that  case  as,  in  our  judgment,  establishing  the  more  just  and  satisfactory 
rule. 

"  In  the  language  of  that  case,  '  it  is  soon  enough  for  corporate  bodies  to 
enter  into  contracts,  incumbering  their  property,  when  they  are  duly  organ- 
ized according  to  their  charters  and  have  their  chosen  and  impartial  direct- 


Chap.  V]       Bell's  Gap  R.  E.  Co.  vs.  Christt.  135 

ore  to  conduct  their  business.'  To  the  same  effect  are  Fravldin  Fire 
Insurance  Co.  vs.  Hart,  31  Md.  59,  and  Safety  Life  Deposit  Ins.  Co.  vs. 
Smith,  65  111.  309." 

See  Stanton  vs.  Neto  Yorh,  etc.,  Ry.  Co.,  59  Conn.  272,  21  Am.  St.  Rep. 
110.  note;  Whitney  vs  Wyman,  101  U.  S.  892  2^ost . 

In  the  note  to  Pittsburg  Mining  Co.  vs.  Spooner,  74  Wis.  307,  17  Am.  St. 
Rep.  149  it  is  said:  "  In  the  note  to  Moore  cfc  H.  H.  Co.  vs.  Toicers  H.  Co., 
18  Am.  St.  Rep.  23,  the  question  of  the  liability  of  a  corporation  for  con- 
tracts entered  into  by  its  promoters  was  considered,  and  the  following  con- 
clusions were  announced  as  sustained  by  the  authorities  upon  that  subject: 
1.  That,  as  a  general  rule,  a  corporation  cannot  be  bound  by  acts  done  or 
promises  made  in  its  name  or  on  its  behalf  before  it  is  in  existence,  and, 
therefore,  that  its  promoters  have  no  authority  to  act  or  contract  for  it  nor 
in  its  name:  Penn  Match  Co.  vs.  Hapgood,  141  Mass.  l^^;  AUbott  vs.  Hap- 
good,  150  Mass.  248,  15  Am.  St.  Rep.  193.  2.  That  while  contracts  made  in 
the  name  or  for  the  benefit  of  a  corporation  before  its  organization  are  not 
binding  upon  it,  yet  it  may  adopt  or  ratify  them  either  in  express  terms 
or  by  implication,  as  by  acting  upon  them  and  receiving  the  benefits 
thereof,  and  when  it  does  so,  it  is  either  bound  by  its  express  contract,  or 
upon  the  ground  of  estoppel  is  not  permitted  to  deny  the  validity  of  such 
contract,  nor  to  refuse  to  discharge  the  obligations  thereby  imposed:  Pax- 
ton  Cattle  Co.  vs.  First  Nat.  Bank,  21  Neb.  621,  59  Am.  Rep.  853;  Gooday 
vs.  Colchester  6c  S.  V.  Ry.  Co.,  17  Beav.  182;  Preston  vs.  Liverpool  & 
M.  N.  Ry.,  L.  R.  7  Eq,  124;  Wood  vs.  Wheeler,  93  111.  153;  Edwards  vs. 
Grand  Junction  Ry.  Co.,  1  Mylne  &  C.  650;  7  Sim.  337;  6  L.  J.  (N.  S.)  Ch. 
47;  Reichwald  vs.  Commercial  Hotel,  106  lU.  439.  It  is  true  that  some  of 
the  authorities  upon  this  subject  deny  that  it  is  possible  for  a  corporation  to 
ratify  a  contract  made  before  its  organization,  because,  they  say,  the  rati- 
fication of  a  contract  makes  it  valid  and  binding  from  its  inception,  and 
that  no  contract  as  against  a  corporation  can  be  deemed  to  have  an  incep- 
tion or  existence  before  it  was  possible  for  the  corporation  to  do  any  act  or 
enter  inio  any  contract;  Abbott  vs.  Hapgood,  supra;  In  re  Empress  Engi- 
neering Co.,  L.  R.,  IG  Ch.  Div.  125;  Reiner  vs.  Baxter,  L.  R.  2  Com.  P.  175; 
Qunn  vs.  London  Ins.  Co.,  12  Com.  B.  (N.  S.)694;  Melhadovs.  Porto  AUegre 
By.  L.  R.  9  Com.  P.  503.  The  effect  of  these  latter  decisions,  as  we  under- 
stand them,  is  to  affirm  thpt  when  a  contract  made  by  promoters  in  the 
name  of  a  corporation  is  acted  upon,  and  its  benefit  accepted  by  the 
corporation  after  its  organization,  this  should  be  regarded,  not  as  a  ratifi- 
cation of  the  old  contract,  which  the  corporation  had  no  capacity  to  make, 
but  as  an  entering  into  a  new  contract  of  the  same  purport  as  the  old  one." 


136  Cases  ois"  Agency.  [Book  I 

(82  New  Yoek,  327.) 

HAMLIN  vs.  SEAES. 

(New  York  Court  of  Appeals,  October,  1880.) 

This  was  an  action  for  the  conversion  of  certain  barley,  admitted 
to  have  belonged  to  plaintiff's  assignor,  Stanley,  but  which  defend- 
ants allege  the}'  bought  from  one  Marsh  who  had  authority  to  sell 
it.  Marsh  sold  the  barley  without  the  knowledge  or  consent  of 
Stanley,  who  had  never  clothed  him  with  any  apparent  authority 
to  act  as  his  agent,  and  in  making  the  sale  Marsh  did  not  assume 
to  act  as  Stanley's  agent.  Defendants  claimed  that  notwithstand- 
ing this,  Stanley  had  so  ratified  the  act  as  to  make  it  his  own.  The 
facts  relied  upon  to  constitute  a  ratification  were  the  following: 
The  first  car  load  of  the  barley  was  shipped  to  the  defendants 
December  31,  1873,  and  the  last  car  load  March  7,  1813.  In  the 
latter  month,  Stanley  discovered  that  a  large  portion  of  his  barley 
had  been  taken  away;  and  he  made  inquiry  of  Marsh  about  it  and 
was  informed  by  him  that  it  was  in  a  malt-house  in  the  same  village, 
and  he  was  thus  induced  to  rest  easy  about  it  until  July,  when,  by 
examination  at  the  railroad  office,  he,  for  the  first  time,  discovered 
that  it  had  been  shipped  to  Buffalo.  This  was  about  five  months 
after  the  last  barley  had  been  shipped.  It  did  not  nppear  that 
Stanley  thereafter,  prior  to  May,  1874,  made  any  efforts  to  follow 
or  reclaim  the  barley,  and  in  that  month  he  made  a  general  assign- 
ment for  the  benefit  of  his  creditors.  This  claim  against  the 
defendants  was  not  inserted  in  the  schedule  of  Stanley's  assets  made 
after  the  assignment,  but  he  testified  that  he  mentioned  it  to  his 
attorney  at  the  time  the  schedule  was  made.  The  plaintiff  testified 
that  he  did  not  hear  of  this  claim  until  some  time  after  the  assign- 
ment was  made,  and  that  he  first  called  upon  the  defendants  and 
made  claim  nj)on  them  for  the  barley  in  January,  1875,  and  that 
was  the  first  time  that  they  learned  of  the  claim  that  the  barley 
belonged  to  Stanley  and  was  wrongfully  taken  and  sold  to  them. 

The  referee  held  that  these  facts  did  not  amount  to  a  ratification; 
the  General  Term  reversed  his  judgment,  and  plaintiff  appealed. 

E.  A.  Nash,  for  appellant. 
Myron  H,  Peck,  for  respondents. 

Earl,  J.     (After  stating  the  facts  substantially  as  above.)     The 


Chap.  V]  Hamlin  vs.  Sears.  137 

general  doctrine  that  one  may,  by  ufQrmative  acts,  and  even  by 
silence,  ratify  the  acts  of  another  who  has  assumed  to  act  as  his 
agent,  is  not  disputed.  It  is  illustrated  by  many  cases  to  be  found 
in  the  books,  and  set  forth  by  all  the  text  writers  upon  the  law  of 
agency.  (Story  on  Agency,  §  251a;  2  Greenl.  on  Ev.,  §§  6G,  67; 
2  Kent's  Com.  616;  Tliompson  vs.  Craig,  16  Abb.  [N.  S.]  29;  Wilson 
vs.  Tumman,  6  Mann.  &  Gr.  236;  Watson  vs.  Swann,  11  C.  B.  [N. 
S.]  756.)  But  the  doctrine  properly  applies  only  to  cases 
where  one  has  assumed  to  act  as  agent  for  another,  and 
then  a  subsequent  ratification  is  equivalent  to  an  original  author- 
ity. One  may  wrongfully  take  the  property  of  another  not 
assuming  to  act  as  agent,  and  sell  it  in  his  own  name  and  on 
his  own  account,  and  in  such  case  there  is  no  question  of  agency, 
and  there  is  nothing  to  ratify.  The  owner  may  subsequently  con- 
firm the  sale,  but  this  he  cannot  do  by  a  simple  ratification.  His 
confirmation  must  rest  upon  some  consideration  upholding  the 
confirmation,  or  upon  an  estoppel.  ( Worlcman  vs.  Wrigjit,  36  Ohio 
St.  405.)  Here  Stanley  did  no  act,  and  said  no  word  ratifying  the 
sale  of  his  barley.  The  most  that  can  be  claimed  is  that  after  he 
discovered  that  the  barley  had  been  shipped  to  the  defendants  he 
made  no  efforts  to  reclaim  it,  and  gave  no  notice  of  his  title  to  the 
defendants.  No  estoppel  can  be  claimed,  as  the  defendants  did  not 
rely  upon  Stanley's  silence,  and  were  not,  so  far  as  appears,  dam- 
aged thereby.  So  that  it  comes  down  to  this:  When  the  property 
of  one  man  is  wrongfully  taken  and  sold  by  another,  in  his  own 
name  and  for  his  own  benefit,  must  the  owner,  when  he  after- 
ward discovers  the  wrong,  make  efforts  to  reclaim  his  property,  or 
notify  the  purchasers  of  his  claim  at  the  risk  of  losing  his  prop- 
erty? There  is  no  authority  holding  that  such  a  duty  rests  upon 
the  owner  of  property  wrongfully  taken  and  converted.  The 
mere  silence  of  the  owner,  under  such  circumstances,  will  not  bar  his 
claim,  if  it  be  short  of  the  time  prescribed  in  the  statute  of  limita- 
tions. The  rule  of  caveai  emptor  applies,  and  the  purchaser  must 
see  to  it  that  he  buys  of  one  who  owns  the  property  or  has  author- 
ity to  sell. 

"We  have  carefully  examined  all  the  authorities  cited  by  the 
learned  counsel  for  the  defendants,  and  it  is  sufficient  to  say  of 
them, that  they  in  no  degree  sustain  the  novel  doctrine  contended  for 
by  him.  The  maxim  that  "  he  who  has  been  silent  when  in  con- 
Bcience  he  ought  to  have  spoken,  shall  be  debarred  from  speaking 
when  conscience  requires  him  to  be  silent,"  cannot  be  invoked  in 


138  Cases  on  Agency.  [Book  I 

this  case.  It  wonld  have  been  applicable  if  Stanley  had  stood  by 
and  in  silence  permitted  Marsh  to  deal  in  or  sell  his  property,  or  if 
hearing  that  he  had  taken  his  property,  he  had  in  silence  seen  the 
defendants  pay  him  for  the  property.  When  he  first  heard  of  this 
wrong,  the  property  had  been  taken  and  paid  for,  and  the  time 
■when  conscicr:ce  required  him  to  sjjeak  was  passed.  His  silence 
induced  no  act  and  did  no  wrong. 

Order  reversed  and  judgment  aflOirmed, 


(39  Federal  Reporter,  347.) 
WHEELER  vs.  NORTHWESTERN  SLEIGH  00. 

^United  States  Circuit  Court,  Eastern  District  of  Wisconsin,  August, 
18S9,  Before  Gresham  and  Jenkins,  JJ.J 

The  plaintiff  sued  to  recover  a  dividend  declared  by  defendant 
upon  stock  in  its  company  then  owned  by  plaintiff.  After  the 
dividend  had  been  declared,  plaintiff  authorized  one  Benjamin  to 
sell  the  stock,  expressly  reserving  the  dividend,  plaintiff  retaining 
possession  of  the  stock.  Benjamin  entered  into  an  agreement  with 
Chapman  &  Goss  to  sell  them  the  stock  with  the  dividend  included. 
Benjamin  wrote  plaintiff  that  he  had  sold  the  stock  at  par,  and 
plaintiff  thereupon  sent  the  stock  to  Benjamin,  who  delivered  it  to 
Chapman  &  Goss,  who  thereupon  paid  him  the  par  value  upon  the 
strength  of  his  agreement  that  the  dividend  should  go  with  it. 
There  was  no  formal  transfer  of  the  dividend.  Plaintiff  received 
the  proceeds  of  the  stock  in  ignorance  of  Benjamin's  agreement 
that  the  dividend  was  to  be  included.  Plaintiff  and  Chapman  & 
Goss  both  claiming  the  dividend,  the  company  paid  it  to  the  latter 
taking  indemnity,  and  plaintiff  brought  this  action.  On  the  trial, 
Benjamin  denied  making  the  agreement,  but  the  jury  found 
against  him  on  this  point.  A  special  verdict  was  taken  upon 
which  both  parties  moved  for  judgment. 

W.  J.  Turner,  for  plaintiff. 

J.  V.  &  Chas.  Quarles  and  /.  0.  Flanders,  for  defendant. 

Jenkins,  J.  (After  holding  that  the  dividend  did  not  pass  as 
incident  to  the  stock.)  It  is,  of  course,  correct  to  say  that  if  a 
principal  puts  his  agent  in  a  position  to  impose  upon  an  innocent 


Chap.  V]  Wheeleb,  vs.  Sleigh  Co.  139 

third  person,  by  apparently  pursuing  his  authority,  he  shall  be 
bound  by  his  acts.  It  is,  however,  equally  true  that  one  dealing 
with  an  agent  must  look  to  the  extent  and  scope  of  his  agency,  and 
that  an  implied  or  ostensible  agency  is  never  construed  to  extend 
beyond  the  obvious  purpose  for  which  it  is  apparently  created. 
Here  the  plaintiff  had  authorized  his  agent  to  sell  his  sliares  in  the 
defendant  company.  He  was  bound  by  all  such  acts  of  his  agent 
as  were  within  the  apparent  authority  arising  from  possession  of 
the  stock.  But  that  possession  did  not  clothe  the  agent  with 
apparent  authority  to  sell  other  property;  did  not  authorize  the 
disposition  of  a  previously  declared  dividend.  The  ostensible,  as 
well  as  actual,  authority  was  limited  to  disposition  of  the  stock, 
and  that  alone.  The  purchasers  had  no  right  to  assume  that  the 
agent,  because  the  possessor  of  the  stock,  was  also  authorized  to 
sell  the  dividend,  that  was  no  part  of  and  did  not  pass  as  an  inci- 
dent to  the  stock.  As  to  that  they  dealt  with  the  agent  at  their 
peril.  Supposing  the  agent  to  be  acting  for  himself  or  his  wife, 
and  not  for  the  plaintiff,  they  were  bound  to  the  greater  caution 
to  ascertain  if  there  had  been  a  transfer  of  the  dividend  by  the 
plaintiff.  It  is  clear  that  the  plaintiff  was  not  bound  by  any  repre- 
sentation or  agreement  of  his  agent  touching  the  dividend,  because 
in  respect  thereto  the  agent  was  acting  without  authority,  and 
beyond  the  apparent  scope  of  authority  flowing  from  the  possession 
of  the  stock. 

The  plaintiff  received  from  Benjamin,  and  has  since  retained,  the 
avails  of  the  stock.  This  the  defendant  insists  works  a  ratification 
by  the  plaintiff  of  the  unauthorized  act  of  the  agent.  It  was  doubt- 
less competent  for  the  defendant  to  have  interpleaded  these  rival 
claimants  to  the  dividend.  Salishury  Mills  vs.  Townsend,  109  Mass. 
115.  Instead  of  so  doing,  it  paid  to  Chapman  &  Goss  the 
dividend  claimed  by  the  plaintiff,  and  asserts  a  ratification  of  the 
contract  to  which  it  was  not  a  party,  and  in  behalf  of  those  who 
are  not  before  the  court,  nor  bound  by  its  decision.  It  may  well 
be  doubted  if  the  defendant  is  in  position  to  avail  itself  of  the 
alleged  ratification.  Assuming,  however,  that  such  defense  is 
availing  to  the  defendant,  is  ratification  shown?  It  is  well  estab- 
lished that  a  ratification  of  an  unauthorized  contract,  to  be  effec- 
tual and  binding  upon  the  one  sought  to  be  bound  as  principal, 
must  be  shown  to  have  been  made  by  him  with  full  knowledge  of 
all  the  material  facts  connected  with  the  transaction  to  which  it 
relates,  and  that  the  existence  of  the  contract,  its  nature  and  con- 


140  Cases  on  Agency.  [Book  I 

Bideration,  were  known  to  him.  But  if  the  material  facts  were 
suppressed,  or  were  unknown  to  him,  except  as  the  result  of  his 
intentional  and  deliberate  act,  the  ratification  will  be  invalid, 
because  founded  upon  mistake  or  fraud.  Owing s  vs.  Hull,  9  Pet. 
629;  Bennecke  vs.  Insurance  Co.,  105  U.  S.  360;  Bloomfield  vs. 
Bank,  121  U.  S.  135,  7  Sup.  Ct.  Rep.  865;  Rollmg-Mill  vs.  Rail- 
way Co.,  5  Fed.  Kep.  852;  McClelland  vs.  Whitely,  15  Fed.  Rep. 
322:  Dkh'nson  vs,  Coiiway,  12  Allen  (Mass.)  491. 

The  defendant  asserting  such  ratification,  was  therefore  bound 
to  show  that  it  was  made  by  the  plaintiff  under  such  circumstances 
as  to  be  binding  upon  him,  and  that  all  material  facts  were  made 
known  to  him.  Comhs  vs.  Scott,  13  Allen  495,  {2J0st,182);  Eardeman 
vs.  Ford,  12  Ga.  205.  Do  the  facts  disclose  ratification?  The  plaint- 
iff authorized  his  agent  to  sell  the  stock,  at  par.  He  conferred 
upon  the  agent  no  apparent  authority  to  dispose  of  anything  else. 
As  to  the  dividend,  the  purchaser  had  no  right  to  assume  that  Ben- 
jamin could  dispose  of  it.  The  possession  of  the  actual  ownership 
of  the  stock,  subsequent  to  the  declaration  of  the  dividend,  gave 
him  no  apparent  authority  to  sell  the  dividend.  As  to  that  they 
dealt  with  Benjamin  at  their  peril.  A  transfer  of  the  stock  vested 
no  legal  title  to  the  dividend  previously  declared.  There  was  no 
actual  transfer  of  the  dividend,  and  none  was  demanded.  The 
purchasers  are  chargeable  with  knowledge  of  the  law  that  the  divi- 
dend did  not  follow  the  stock;  that  the  dividend  belonged  to  the 
plaintiff,  and  they  were  bound  to  inquire,  supposing  Benjamin  to 
be  acting  for  himself  or  his  wife,  as  to  his  or  her  ownership  of 
this  dividend.  So  far,  therefore,  the  purchasers  were  negligent; 
the  plaintiff  was  innocent. 

Did  the  retention  by  the  plaintiff  of  the  avails  of  the  stock 
amount  to  a  ratification?  The  plaintiff  received  as  avails  of  the 
stock  the  exact  amount  for  which  he  had  authorized  his  agent  to 
dispose  of  his  stock.  He  had  no  reason  to  suppose  that  any  false 
representation  had  been  made,  or  that  his  agent  had  assumed  to 
dispose  of  any  other  property  than  the  stock  as  the  consideration 
for  the  money  paid  by  the  purchasers  and  received  by  him.  Under 
such  circumstances,  the  retention  of  the  money  cannot  be  held  to  be 
a  ratification  by  him  of  the  unauthorized  acts  of  the  agent,  because 
it  was  retained  without  knowledge  of  the  facts.  Bell  vs.  Cunnitig- 
ham,  3  Pet.  69,  81;  Hastings  vs.  Proprietors,  18  Me.  436;  Bryant 
vs.  Moore,  26  Me.  87;  Timelier  vs.  Fray,  113  Mass.  201;  Naviga- 
tion Co.  vs.  Dandridge,  8  Gill.  &  J.  248,  29  Am.  Dec.  543;   Smith 


Chap.  V  ]  WnEELER  vs.  Sleigh  Co.  141 

vs.  Tracy,  3G  N.  Y.  79  {post  p. ;  Bahhuin  vs.  Burrows,  47  N.  Y. 

199  {post  p.  — );  Smith  vs.  Kidd,  G8  N.  Y.  130,  23  Am.  Rep.  157; 
Reynolds  vs.  Fcrree,  86  111.  576;   lioUrts  vs.  Uumlcy,  58  Iowa,  301 

^ost  p. );  Bohart    vs.   Oberne,  36   Kan.  284;  Insura?ice  Co. 

vs.  Iron  Co.,  21  Wis.  458,  464. 

So  far  as  the  record  discloses,  the  first  notice  which  the  plaintiff 
received  that  the  purchasers  of  the  stock  claimed  the  dividend  was 
about  May  7th,  when  the  treasurer  of  the  defendant  seems  to  have 
advised  him  thereof,  and  requested  to  know  if  the  plaintiff  made 
claim  thereto.  It  does  not  appear  that  the  grounds  of  the  claim 
were  then  disclosed.  It  would  seem  probable  that  the  plaintiff 
understood  the  claim  to  be  bottomed  upon  the  ground  that  by  law 
the  stock  carried  dividend  previously  declared  and  unpaid,— a 
ground  insisted  upon  at  the  trial,— as  the  plaintiff  in  his  letter  of 
that  date  speaks  of  the  purchaser  undertaking  to  hold  the  dividend 
"under  some  technicality.''  There  seems  to  have  been  no  com- 
munication between  Chapman  &  Goss  and  the  plaintiff  at  any  time 
touching  their  claim. 

They  asserted  no  claim,  and  disclosed  no  ground  of  claim.  They 
knew  the  false  representation  and  agreement,  of  which  the  plaint- 
iff was  ignorant,  and  were,  I  think,  bound,  if  they  sought  to  hold 
the  plaintiff  to  a  ratification  of  the  unauthorized  act  of  his  agent, 
to  possess  the  plaintiff  with  facts  within  their  knowledge,  and  not 
in  his,  and  to  assert  a  claim  founded  thereon.  This  they  did  not 
do,  but,  knowing  that  the  plaintiff  claimed  the  dividend,  remained 
passive  so  far  as  concerns  getting  information  to  him  of  the  grounds 
of  their  claim.  It  cannot  surely  be  said  that  under  such  circum- 
stances the  retention  of  the  money  was  an  act  of  affirmance.  To 
so  hold  would  place  every  principal  at  the  mercy  of  his  agent  with 
respect  to  matters  as  to  which  he  had  conferred  no  apparent  author- 
ity. So  that  if  one  should  authorize  his  agent  to  sell  his  house  for 
$20,000,  and  the  agent  selling  the  house  for  that  sum  should  include 
in  the  s;  le  certain  bank  stock  which  he  was  not  authorized  to  sell, 
and  of  which  he  had  no  possession,  the  principal,  by  the  mere 
receipt  and  retention  of  the  sum  which  he  had  authorized  to  be 
taken  for  the  house,  and  in  ignorance  of  the  fact  that  the  bank 
stock  was  part  of  the  consideration  running  to  the  purchaser,  would 
be  bound  to  deliver  the  stock.  I  cannot  yield  assent  to  such  doctriue. 
The  purchaser,  had,  in  the  case  supposed,  no  right  to  trust  the 
agent  with  respect  to  the  bank  stock.  He  had  not  the  possession 
of  it,  and  was  not  clothed  with  any  authority  with  respect  to  it. 


142  Cases  on  Agency,  [Book  I 

The  purchaser  was  bound  to  inquire  into  the  authority  of  the  agent 
in  such  case.  The  reception  and  retention  of  the  exact  sum  author- 
ized to  be  taken  for  the  house,  in  ignorance  of  the  act  of  the  agent 
with  respect  to  the  bank  stock,  is  no  ratification.  Otherwise  the 
principal  is  bound  for  every  unauthorized  act  of  the  agent,  and  the 
purchaser  may  trust  the  agent,  who  can  exhibit  no  authority. 
Such  a  principle  would  be  ruinous.  Upon  maturity  of  the  dividend, 
suit  was  at  once  brought  against  the  company.  Until  the  trial  the 
plaintiff  was  not  shown  to  have  knowledge  of  the  facts  upon  which 
the  claim  of  the  purchasers  to  the  dividend  is  baged.  They  had 
not  communicated  them  to  him.  He  could  not  have  learned  them 
from  the  agent,  for  he  denied  the  representations  and  agreement. 
This  was  no  acquiescence,  working  ratification  of  the  unauthorized 
act  of  Benjamin. 

The  cases  relied  upon  by  the  defendant  are  of  the  class,  either  of 
recognized  agency  or  of  acts  adopted  by  the  principal  as  done  for 
him,  where  a  right  obtained  by  the  agent  is  sought  to  be  enforced, 
or  where  the  principal  receives  the  avails  of  a  contract  either  author- 
ized or  adopted  by  him.  The  liability  of  the  principal  for  the  fraud 
of  his  agent  is  bottomed  upon  the  principle  that,  by  adopting  the 
contract  made  by  the  agent,  and  receiving  the  avails,  the  principal 
assumes  responsibility  for  the  means  adopted  to  effect  the  contract; 
but,  as  well  observed  in  Baldwin  vs.  Burrows,  supra,  where  the 
cases  are  ably  reviewed,  and  the  lines  of  distinction  are  sharply 
defined,  "  this  responsibility  for  instrumentalities  does  not  extend 
to  collateral  contiacts  made  by  the  agent  in  excess  of  his  actual  or 
ostensible  authority,  and  not  known  to  the  principal  at  the  time  of 
receiving  the  proceeds,  though  such  collateral  contract  may  have 
been  the  means  by  which  the  agent  was  enabled  to  effect  the  unauth- 
orized contract,  and  the  principal  retain  the  proceeds  thereof  after 
knowledge  of  the  fact."  The  present  case  is  not  within  the  class 
of  cases  relied  upon.  The  collateral  contract  for  the  transfer  of 
the  dividend  was  in  excess  of  any  authority,  actual  or  ostensible. 
The  proceeds  of  the  authorized  sale  of  the  stock  were  received  in 
ignorance  of  the  fraud  perpetrated  by  the  agent.  The  amount  of 
Buch  proceeds  was  the  exact  amount  authorized  to  be  received  for 
the  stock.  The  plaintiff,  by  retaining  the  proceeds,  adopted  and 
ratified  what  he  had  authorized.  Such  action  cannot  be  tortured 
into  ratification  of  unauthorized  acts.  Smith  vs.  Tracy  36  N.  Y. 
79;  Co7idU  vs.  Baldiuin,  21  N.  Y.  219,  78  Am.  Dec.  137. 

Geesham,  J.,  concurs.  Judgment  for  plaintiff. 


Chap.  V]  RoBEiiTS  vs.  Eumlet.  143 

(68  Iowa,  301.) 

ROBERTS  vs.  RUMLEY. 

(Supreme  Court  of  Iowa,  June,  1882.) 

M.  &  J.  Rnmley,  of  La  Porte,  Ind.,  held  three  notes  execnted 
by  J.  H.  Hoffman  and  W.  H.  Roberts,  of  Iowa.  In  form,  these 
notes  were  joint,  but  Roberts  was  in  fact  surety  for  Hoffman.  The 
Runileys  also  held  two  other  notes  signed  by  Hoffman  alone. 
These  notes  being  due  and  unpaid,  they  put  them  into  the  hands 
of  their  local  attorney,  W.  E.  Higgins,  and  he  sent  them  to  Huff 
&  Reed,  attorneys,  in  Iowa,  for  collection.  Huff  &  Reed  put  the 
notes  in  judgment  and  taking  out  execution  upon  the  judgment 
against  Hofl'man  and  Roberts,  they  levied  upon  Roberts'  stock  of 
goods.  In  order  to  procure  a  release,  Roberts  suggested  to  Huff 
&  Reed  that  he  would  procure  Hoffman  to  execute  a  mortgage  to 
the  Rumleys  upon  his  homestead  to  secure  the  judgments  if  an 
extension  of  time  could  be  procured  and  the  privilege  of  paying  in 
installments.  Huff  &  Reed  wrote  to  Higgins  and  the  latter 
advised  them  to  accept  the  proposition  provided  $100  was  paid  at 
once  to  apply  on  fees.  The  mortgage  was  executed  and  Roberts 
paid  in  $100  "as  surety,"  which  Huff  &  Reed  agreed  should  be 
applied  on  the  judgment  against  Hoffman  and  Roberts,  and  they 
agreed  further  that  the  mortgage  given  by  Hoffman  to  the  Rum- 
leys  "  is  assigned  to  said  "W.  H.  Roberts  as  security  for  the  said 
sum  of  $100  he  has  paid  as  surety."  These  agreements  were  made 
without  authority  and  without  the  knowledge  of  the  Rumleys. 
Default  being  made  in  the  terms  of  the  mortgage  a  decree  of  fore- 
closure was  had  which  directed  that  the  proceeds  should  first  be 
applied  to  paying  taxes  and  costs,  and  the  balance  applied  ;)ro 
rata  upon  the  judgments.  Roberts  brought  this  action  to  secure 
the  application  of  the  proceeds  first  to  the  judgment  upon  which 
he  was  surety,  and  also,  that  he  be  subrogated  to  the  mortgage  to 
the  extent  of  the  $100  paid  by  him.  He  alleged  that  provisions 
to  this  effect  were  agreed  upon  with  Huff  &  Reed  and  were 
to  have  been  inserted  in  the  mortgage  but  were  omitted  by  mis- 
take. Judgment  was  rendered  in  his  favor  and  defendants 
appealed. 

E.  W.  Eastman,  for  appellant. 

W.  V.  Allen,  for  appellee. 


1.44  Cases  on  Agency.  [Book  I 

Day,  J.  (After  stating  the  facts.)  Whatever  agreement  was 
entered  into  between  the  parties,  was  made  between  plaintiff  and 
Hnff  &  Eeed.  Huff  &  Reed,  as  attorneys,  simply  for  the  collec- 
tion of  the  notes,  had  no  authority  to  release  the  levy  upon  plaint- 
iff's property  and  take  the  mortgage  in  question,  extending  the  time 
of  payment  of  one-half  of  the  judgment  for  one  year  and  seven 
months,  and  of  the  other  half  for  three  years  and  one  month. 
Whatever  authority  Huff  &  Eeed  had  in  the  premises  was  specially 
conferred  by  the  letter  of  Higgins  above  set  out.  They  were 
special  agents,  for  a  particular  purpose,  with  prescribed  and  limited 
powers.  They  were  authorized  to  secure  both  judgments,  the  one 
upon  which  plaintiff  was  not  liable  as  a  surety,  as  well  as  the  one 
upon  which  he  was  so  liable.  They  were  not  authorized  to  take  a 
security  which  should  be  primarily  applied  to  and  perhaps  exhausted 
upon,  the  judgment  which  was  already  secured.  If  Huff  &  Reed 
made  the  agreement  which  the  plaintiff  alleges,  they  transcended 
their  powers  as  agents,  and  their  agreement  does  not  bind  their 
principals.  It  was  incumbent  upon  the  plaintiff  to  ascertain  the 
scope  and  extent  of  the  powers  of  the  agents  with  whom  he  dealt. 
See  Story  on  Agency,  sections  126-133  and  notes. 

It  is  said,  however,  that,  even  if  Huff  &  Eeed  transcended  their 
agency,  the  defendants  have  adopted  and  ratified  their  acts.  It 
does  not  appear,  however,  that  the  defendants  ever  had  any  inti- 
mation of  the  agreement  which  the  plaintiff  now  alleges  to  exist, 
and  which  he  is  seeking  to  enforce,  until  the  commencement  of 
this  suit.  They  could  not  have  ratified  and  adopted  an  act  about 
which  they  knew  nothing.  It  is  further  claimed  that  the  defend- 
ants cannot  avail  themselves  of  the  benefits  of  the  acts  of  their 
agents,  without  also  being  bound  by  whatever  may  be  prejudicial 
to  them.  This  principle  applies  to  the  doctrine  of  agency,  with 
Bome  limitations  and  qualifications.  If  the  agents  had  incorpo- 
rated in  the  mortgage  a  provision  that  the  proceeds  of  the  mort- 
gaged property  should  first  be  applied  to  the  satisfaction  of  the 
judgment  upon  which  Roberts  was  surety,  the  defendants  could 
not  have  accepted  the  benefits  of  the  mortgage  without  being  bound 
by  this  condition,  even  although  the  agents  had  no  authority  to 
agree  to  such  conditions. 

So,  too,  if  the  defendants  had  known  that  their  agents  had  agreed 
to  incorporate  such  a  condition  in  the  mortgage,  and  that  it  was 
omitted  by  mistake,  they  would,  probably,  on  acceptance  of  the 
mortgage,  have  been  bound  by  the  condition.     But  to  hold  that 


Chap.  V]  EOBEETS  vs.    RUMLEY.  145 

the  principal  is  bound  by  agreements  between  the  special  agent 
and  the  person  with  whom  he  contracts,  not  authorized  by  the  agent's 
appointment,  and  of  which  he  had  no  knowledge  when  he  accepted 
the  benefits  of  the  contract  would  be  entirely  subversive  of  the 
whole  doctrine  of  special  agency,  and  instead  of  requiring  the 
person  dealing  with  the  agent  to  ascertain,  at  his  peril,  that  the 
agent  has  kept  within  his  special  authority,  would  require  the 
principal  to  enquire,  at  his  peril  whether  the  agent  had  gone  beyond 
it.  The  case  of  Eadie,  Guilford,  <&  Co.  vs.  Ashb  iigh,  44  Iowa  519, 
and  Beidman  vs.  Ooodell,  66  Iowa  592,  are  not  inconsistant  with 
this  view. 

The  majority  opinion  in  Eadie,  Guilford  £  Co.  vs.  Ashhaugh,  la 
grounded  upon  the  fact  that  Allen,  who  made  the  sale  in  question, 
was  not  the  agent  of  the  plaintiffs  and  had  no  authority  to  sell  the 
machine,  with  a  warranty,but  that  he  assumed  to  act  as  agent  and  sold 
the  machine  with  a  warranty.  In  Beidman  vs.  Goodell,  also,  it 
appears  from  the  opinion  that  the  persons  by  whose  acts  the  plaintiff 
was  bound  by  ratification,  acted  entirely  without  authority.  Where  a 
person  assumes  without  authority  to  act  as  the  agent  of  another, 
the  principal  cannot  be  bound  at  all  by  the  acts  unless  he  ratifies 
the  same.  In  such  cases  he  cannot  adopt  the  act  in  part,  and 
repudiate  it  in  part.  "  Where  a  contract  is  an  entirety  and  is  wholly 
unauthorized,  and  the  principal  takes  the  benefit  of  it,  he  must  take 
it  with  the  obligations  which  make  a  part  of  it.''  Bicdman  vs. 
Ooodell,  supra,  and  cases  cited;  Davenport  S.  F.  &  Loan  Associa- 
tion vs.  The  JS'orth  American  Fire  Insurance  Co.,  16  Iowa,  74. 
This  principle,  however,  does  not  apply  when  the  agent  is  duly 
appointed  and  vested  with  special  or  limited  powers.  **  Whatever 
he  does  in  such  case  beyond  his  authority,  is  void  unless  ratified, 
and  that,  without  aHecting  the  validity  of  what  was  done  within 
the  scope  of  his  powers.''  Bavehport  S.  F.  dc  L.  Association  vs. 
N.  A.  Fire  Ins.  Co.,  supra. 

The  doctrines  which  we  have  above  announced  apply  to  the  claim 
of  the  plaintiff  that  he  should  be  subrogated  to  the  rights  of  the 
mortgagee,  and  have  a  first  lien  upon  the  mortgaged  premises  for 
the  one  hundred  dollars  which  he  paid  upon  the  judgment.  Huff 
&  Reed  had  no  authority  to  assign  the  mortgage  to  the  plaintiff, 
and  such  assignment  does  not  bind  the  defendants.  The  plaintiff, 
in  our  opinion,  is  not  entitled  to  the  relief  asked,  and  his  petition 
should  have  been  dismissed. 

10  Reversed. 


146  Cases  on  Agency.  [Book  I 

(12  Allen,  493.) 

COMBS  vs.  SCOTT. 

('Supreme  Judicial  Court  of  Massachusetts,  September.  1866. J 

Contract,  brought  to  recover  the  price  agreed  to  be  paid  to  the 
plaintiff  for  his  services  in  obtaining  recruits  for  the  U.  S.  military 
eervice.  Plaintiff  claimed  to  have  been  employed  by  one  Dunton 
as  the  agent  of  defendants,  and  insisted  that  if  there  was  no 
evidence  of  Dunton's  authority  to  employ  him,  his  employment 
had  been  ratified  by  the  defendants.  Verdict  for  plaintiff. 
Defendants  allege  exceptions. 

C.  Allen  (  W.  Griswold  and  S.  T.  Field,  with  him),  for  defend- 
ants. 

D.  Aiken,  for  plaintiff. 

BiQELOW,  C.  J.  (After  overruling  defendant's  exceptions  upon 
other  points.)  But,  upon  another  point,  we  are  of  opinion  that 
the  exceptions  of  the  defendants  are  well  taken.  In  instructing 
the  jury  on  the  question  of  ratification  by  the  defendants  of  the 
contract  alleged  to  have  been  made  by  their  agent  in  excess  of 
the  authority  granted  to  him,  the  judge  in  effect  told  the  jury  that 
such  ratification  would  be  binding  on  the  defendants,  though  made 
under  a  material  apprehension  of  facts,  if  such  misapprehension 
arose  from  the  negligence  or  omission  of  the  defendants  to  make 
inquiries  relative  to  the  subject  matter.  In  the  broad  and  general 
form  in  which  this  instruction  was  given,  we  are  of  opinion  that 
it  did  not  correctly  state  the  rule  of  law,  and  that  the  jury  may 
have  been  misled  by  it  in  the  consideration  of  this  part  of  the  case. 

The  general  rule  is  perfectly  well  settled,  that  a  ratification  of 
the  unauthorized  acts  of  an  agent,  in  order  to  be  effectual  and 
binding  on  the  principal  must  have  been  made  with  a  full  knowl- 
edge of  all  material  facts,  and  that  ignorance,  mistake  or  misap- 
prehension of  any  of  the  essential  circumstances  relating  to  the 
particular  transaction  alleged  to  have  been  ratified  will  absolve  the 
principal  from  all  liability  by  reason  of  any  supposed  adoption  of 
or  assent  to  the  previously  unauthorized  acts  of  an  agent.  We 
know  of  no  qualification  of  this  rule  such  as  was  engrafted  upon  it 
in  the  instructions  given  to  the  jury  in  the  present  case.      Nor 


Chap.  V]  Combs  vs.  Scott.  147 

after  considerable  research,  have  we  been  able  to  find  that  snch 
qualification  has  ever  been  recognized  in  any  approved  text  writer 
or  adjudicated  case;  and  upon  consideration,  it  seems  to  us  to  be 
inconsistent  with  sound  principle. 

Eatification  of  a  past  and  completed  transaction,  into  which  an 
agent  has  entered  without  authority,  is  a  purely  voluntary  act  on 
the  part  of  a  principal.  No  legal  obligation  rests  upon  him  to 
sanction  or  adopt  it.  No  duty  requires  him  to  make  inquiries 
concerning  it.  Where  there  is  no  legal  obligation  or  duty  to  do 
an  act,  there  can  be  no  negligence  in  an  omission  to  perform  it. 

The  true  doctrine  is  well  stated  by  a  learned  text  writer:  "If  I 
make  a  contract  in  the  name  of  a  person  who  has  not  given  me 
an  authority,  he  will  be  under  no  obligation  to  ratify  it,  nor  will 
he  be  bound  to  the  performance  of  it."  1  Livermore  on  Agency, 
44.  See,  also,  Puley  on  Agency,  171,  note  o.  Whoever,  therefore, 
seeks  to  procure  and  rely  on  a  ratification  is  bound  to  show  that 
it  was  made  under  such  circumstances  as  in  law  to  be  binding  on 
the  principal,  especially  to  see  to  it  that  all  material  facts  were 
made  known  to  him.  The  burden  of  making  inquiries  and  of 
ascertaining  the  truth  is  not  cast  on  him  who  is  under  no  legal 
obligation  to  assume  a  responsibility,  but  rests  on  the  party  who  is 
endeavoring  to  obtain  a  benefit  or  advantage  for  himself.  This  is 
not  only  just,  but  it  is  practicable.  The  needful  information  or 
knowledge  is  always  within  the  reach  of  him  who  is  either  party  or 
privy  to  a  transaction  which  he  seeks  to  have  ratified,  rather  than 
of  him  who  did  not  authorize  it,  and  to  the  details  of  which  he  may 
be  a  stranger. 

We  do  not  mean  to  say  that  a  person  can  be  willfully  ignorant  or 
purposely  shut  his  eyes  to  means  of  information  within  his  own 
possession  and  control,  and  thereby  escape  the  consequences  of  a 
ratification  of  unauthorized  acts  into  which  he  has  deliberately 
entered;  but  our  opinion  is  that  ratification  of  an  antecedent  act  of 
an  agent  which  was  unauthorized  cannot  be  held  valid  and  binding, 
where  the  person  sought  to  be  charged  has  misapprehended  or  mis- 
taken material  facts,  although  he  may  have  wholly  omitted  to 
make  inquiries  of  other  persons  concerning  them,  and  his  ignorance 
and  misapprehension  might  have  been  enlightened  and  corrected 
by  the  use  of  diligence  on  his  part  to  ascertain  them.  The  mistake 
at  the  trial  consisted  in  the  assumption  that  any  such  diligence 
was  required  of  the  defendants.     On  this  point,  the  instructions 


148  Cases  ois  Agen^cy,  [Book  I 

were  stated  in  a  manner  -which  may  have  led  the  jury  to  misunder- 
stand the  rights  and  obligations  of  the  parties. 

Exceptions  sustained. 

NOTR— See,  also,  Hyatt  vs.  Clark,  (118  N.  Y.  565)  post.  p.  —  and  note. 


(86  New  Yoek,  200.) 

SCOTT  T8.  MIDDLETOWN,  UNIONVILLE  &  WATER-GAP 
RAILEOAD   COMPANY. 

CNew  York  Court  of  Appeals,  October,  18S1.J 

Action  to  recover  the  purchase  price  of  a  quantity  of  iron  rails, 
spikes,  bolts,  etc.,  alleged  to  have  been  sold  and  delivered  by  one 
Culver  to  defendant.  It  appeared  that  the  materials  in  question 
were  delivered  to  the  defendant  in  pursuance  of  a  contract  made 
by  Culver  with  the  then  president  of  defendant;  that  they  were 
delivered  to  defendant  and  used  for  the  purpose  of  laying  the  track 
on  an  extension  of  defendant's  road.  The  defense  was  that  the 
president  had  no  authority  to  make  the  purchase.  Plaintiff 
recovered  and  defendant  appealed. 

Lewis  E,  Carry  for  appellant. 
J,  W.  Culver y  for  respondent. 

FiNcn,  J.  That  the  president  of  the  defendant  corporation  had 
no  authority  derived  from  his  official  position  to  incur  the  liability 
sought  to  be  enforced,  and  that  no  express  and  formal  action  by  the 
board  of  directors  conferring  such  authority  was  shown,  was  con- 
ceded in  the  charge  of  the  court  to  the  jury,  and  in  the  approval 
of  that  charge  by  the  General  Term.  By  both  tribunals  the  plaint- 
iff's right  of  recovery  was  put  upon  the  ground  that  the  iron 
bought  by  the  president  was  used  in  an  extension  of  the  company's 
track,  without  protest  or  dissent  from  the  board  of  directors,  who 
acquiesced  in,  and  thereby  ratified  the  original  purchase. 

The  general  rule  is  not  here  disputed,  but  the  contention  is  that 
such  ratification  could  not  occur  without  knowledge  by  the 
directors  of  the  terms  of  the  contract,  or,  at  least,  of  the  fact  that 
the  purchase  was  upon  the  credit  of  the  corporation.     But  there 


OLap.  V]  Scott  vs.  Railkoau  Company.  149 

were  no  terms  of  the  contract  except  what  the  law  implies  from 
the  acceptance  of  the  property  sold,  which  is,  that  the  vendee  will 
pay  the  value.  There  was  nothing  else  to  know;  no  other  fact 
remained;  the  only  terms  of  the  contract  were  those  implied  by  the 
law,  which  the  defendant  was  bound  to  know.  The  more  plausible 
suggestion  which,  perhaps,  to  some  extent,  involves  the  other  is, 
that  the  vendee  who  ratifies,  only  does  so  when  his  use  of  the  pur- 
chased article  is  with  knowledge  that  it  was  bought  on  his  credit. 
But  it  is  difiicult  to  see  how  we  can  avoid  assuming  that  the  com- 
pany had  such  knowledge  or,  at  least,  how  a  jury  could  resist  such 
natural  and  necessary  inference.  There  is  the  iron,  being  laid  in 
the  company's  track  and  appropriated  to  the  company's  use.  What 
must  a  director,  looking  on,  necessarily  understand?  Evidently, 
that  such  iron  is  sold  to  the  corporation,  or  given  to  it  or  loaned 
for  its  use.  The  supposition  of  a  gift  or  loan  would  be  so  unlikely 
and  improbable,  in  the  absence  of  any  such  actually  existing  fact, 
that  he  could  hardly  avoid  understanding  a  sale  to  the  company 
upon  its  credit.  The  fact  of  the  delivery  of  the  iron  and  its 
appropriation  and  use  by  the  corporation  for  its  proper  and  ordi- 
nary purposes  with  his  knowledge  and  assent  is  some  evidence  that 
the  directors  knew  of  its  sale  to  the  company,  and  justifies  such 
inference  by  the  jury,  especially  in  case  where  there  is  proof  of  a 
sale  in  fact  intended,  and  no  shadow  of  evidence  of  either  a  loan  or  a 
gift. 

It  is  urged,  however,  that  such  directors  might,  under  peculiar 
circumstances,  have  the  right  to  suppose  that  the  iron  was  fur- 
nished upon  the  credit  of  some  other  person  or  corporation,  and 
that  such  peculiar  circumstances  existed  in  the  present  case.  Still, 
if  there  was  no  gift  or  loan,  the  suggestion  only  changes  the  infer- 
ence as  to  who  is  the  vendor  entitled  to  receive  payment,  and  not  the 
inference  that  he  who  appropriates  and  uses  the  projDerty  does  so 
with  the  knowledge  that  he  must  pay  its  fair  value  to  the  real  owner. 
The  circumstances  relied  upon  as  justifying  the  supposition  were 
also  shown  to  have  occurred  after  the  delivery  and  acceptance  of 
the  iron,  and  so  could  not  have  affected  the  inference  to  be  drawn. 
The  lease  to  the  Oswego  Midland,  by  which  that  company  assumed 
the  funded  and  floating  debt  of  the  defendant,  was  dated  May  24, 
1871,  and  finally  executed  on  the  30th  of  that  month.  The  plaint- 
iffs swear  that  all  the  iron  was  delivered  before  the  execution  ol 
that  lease.     In  any  point  of  view,  therefore,  there  was  evidence 


160  Cases  o:5f  Agency.  [Book  I 

in  the  case  tending  to  prove  a  ratification  and  whicli  warranted 
such  a  conclusion  by  the  jury. 

These  views  indicate  the  grounds  of  our  opinion  that  the  motion 
for  a  non-suit- was  properly  denied,  and  that  the  court  correctly 
charged  that  if  the  defendant  received  the  property  bought  by  its 
president,  and  converted  it  to  the  use  of  the  corporation,  and 
used  it  for  the  corporate  purposes  for  which  the  material  was 
designed,  that  would  be  an  adoption  and  ratification  of  the  act  of 
the  officer,  and  that  the  directors  using  the  materials  purchased 
were  bound  to  inquire  and  presumed  to  know  whether  it  was  paid  for 
or  not,  and  also  that  the  court  properly  declined  to  charge  that  it 
was  essential  to  an  adoption  of  the  act  of  the  officer  that  the  direc- 
tors should  know  the  terms  of  his  contract.       ♦      •      * 

Affirmed. 


(44  Mich.  519,  38  Am.  Rep.  278.) 

EBERTS  vs.   SELOVER. 

(Supreme  Court  of  Michigan,  October,  1880.) 

Assumpsit.     Plaintiff  brings  error.     The  opinion  states  the  case. 
Hiram  Kimball,  for  plaintiff. 
John  R.  Champion,  for  defendant. 

CooLEY,  J.  This  is  an  action  brought  to  recover  the  subscrip- 
tion price  of  a  local  history.  The  subscription  was  obtained  by  an 
agent  of  the  plaintiffs,  and  defendant  signed  his  name  to  a  prom- 
ise to  pay  ten  dollars  on  the  delivery  of  the  book.  This  promise  was 
printed  in  a  little  book,  made  use  of  for  the  purpose  of  obtaining 
such  subscriptions,  and  on  the  opposite  page,  in  sight  of  one  signing, 
was  a  reference  to  **  rules  to  agents,"  printed  on  the  first  page  of 
the  book.  One  of  these  rules  was  that  "  no  promise  or  statement 
made  by  an  agent  which  interferes  with  the  intent  of  printed  con- 
tract shall  be  valid,*'  and  patrons  were  warned  under  no  circum- 
stances to  permit  themselves  to  be  persuaded  into  signing  the  sub- 
scription unless  they  expected  to  pay  the  price  charged.  From  the 
evidence  it  appears  that  when  Schenck,  the  agent,  solicited  his  sub- 
scription the  defendant  was  not  inclined  to  give  it,  but  finally  told 
the  agent  he  would  take  it  provided  his  fees  in  the  office  of  justice. 


Ohap.  V]  Ebekts  vs.  Selovee.  151 

then  held  by  him,  which  should  accrue  from  that  time  to  the  delivery 
of  the  book  should  be  received  as  an  equivalent.  The  agent 
assented,  and  defendant  signed  the  subscription,  receiving  at  the 
same  time  from  the  agent  the  following  paper: 

*'  CoLDWATER,  April  29,  1878. 

"Mr.  Isaac  M.  Selover  gives  his  order  for  one  copy  of  our 
history,  for  which  he  agrees  to  pay  on  delivery  all  the  proceeds  of 
his  office  as  justice  from  now  till  the  delivery  of  said  history. 

"Eberts  &  Abbott,  per  Schenck.*' 

The  plaintiffs  claim  that  the  history  was  duly  delivered,  and  they 
demanded  the  subscription  price,  repudiating  the  undertaking  of 
the  agent  to  receive  anything  else,  as  being  in  excess  of  his  author- 
ity and  void.  The  defendant  relies  on  that  undertaking,  and  has 
brought  into  court  $4.27  as  the  amount  of  his  fees  as  justice  for 
the  period  named.  This  statement  of  facts  presents  the  questions 
at  issue  so  far  as  they  concern  the  merits. 

It  may  be  perfectly  true,  as  the  plaintiffs  insist,  that  this  under- 
taking of  the  agent  was  in  excess  of  his  authority;  that  the 
defendant  was  fairly  notified  by  the  entries  in  the  book  of  that 
fact,  and  that  consequently  the  plaintiffs  were  not  bound  by  it, 
unless  they  subsequently  ratified  it.  Unfortunately  for  their  case, 
the  determination  that  the  act  of  the  agent  in  giving  this  paper 
was  void  does  not  by  any  means  settle  the  fact  of  defendant's 
liability  upon  the  subscription. 

The  plaintiffs'  case  requires  that  they  shall  make  out  a  contract 
for  the  purchase  of  their  book.  To  do  this,  it  is  essential  that  they 
show  that  the  minds  of  the  parties  met  on  some  distinct  and  defi- 
nite terms.  The  subscription  standing  alone  shows  this,  for  it 
shows,  apparently,  that  defendant  agreed  to  take  the  book  and  pay 
therefor  on  delivery  the  sum  of  ten  dollars.  But  the  contemporan- 
eous paper  given  back  by  the  agent  constitutes  a  part  of  the  same 
contract,  and  the  two  must  be  taken  and  considered  together. 
Branson  vs.  Green,  Walk.  Ch.  56;  Dudgeon  vs.  Haggart,  17  Mich. 
275.  Taking  the  two  together  it  appears  that  the  defendant  never 
assented  to  any  purchase  except  upon  the  terms  that  the  plaintiffs 
should  accept  his  justice's  fees  for  the  period  named  in  full  pay- 
ment for  the  book.  If  this  part  of  the  agreement  is  void,  the 
whole  falls  to  the  ground,  for  defendant  has  assented  to  none  of 
which  this  is  not  a  part.  When  plaintiffs  discovered  what  their 
agent  had  done,  two  courses  were  open  to  them:  to  ratify  his  con- 
tract, or  to  repudiate  it.     If  they  ratified  it,  they  must  accept  what 


153  Cases  ox  Age^s^ct.  [Book  I 

he  agreed  to  take.  If  they  reiDudiated  it,  they  must  decline  to 
deliver  the  book  under  it.  But  they  cnnnot  ratify  so  far  as  it 
favors  them  and  repudiate,  so  far  as  it  does  not  accord  with  their 
interests.  They  must  deal  with  the  defendant's  undertaking  as  a 
"whole,  and  cannot  make  a  new  contract  by  a  selection  of  stipula- 
tions to  which  separately  he  has  never  assented. 

The  judgment  must  be  affirmed  with  costs. 

Note— In  Brigham  vs.  Palmer,  (1883)  3  Allen,  (Mass.)  450,  plaintiff's  agent 
was  authorized  to  sell  a  wagon  for  $75  cash,  but  sold  it  for  part  cash, 
another  wagon  and  a  note  payable  to  the  agent.  Plaintiff  sued  as  for  goods 
sold  and  delivered.  Held,  that  the  action  could  not  be  maintained.  "It 
seems  to  us  very  clear,"  said  the  court,  "  that  if  the  plaintiff's  property  was 
sold  by  a  pei-son  assuming  to  act  for  him,  but  without  authority,  in  an 
action  against  the  purchaser,  if  the  plaintiff  waives  the  tort  and  ratifies  the 
contract,  he  must  ratify  it  as  the  agent  made  it.  Otherwise,  he  can  only 
sue  for  the  property  itself,  or  in  tort  for  damages  for  the  unlawful  conver- 
sion. He  cannot  ratify  a  part  of  the  contract  made  on  his  behalf,  and 
repudiate  the  rest." 


(144  Pennsylvania  State,  398,  27  Am.  St.  Rep.  638.) 

WHEELER  &  WILSON  MFG.  CO.  vs.  AUGHEY. 

("Supreme  Court  of  Pennsylvania,  October,  JS91.J 

Action  on  four  notes  signed  by  defendant,  who  alleged  that  he 
was  induced  to  sign  them  by  false  representations  made  to  him  by 
one  Landis,  agent  for  the  plaintiff  company.  Landis  falsely  rep- 
resented that  he  was  not  indebted  to  said  company,  that  the  notes 
were  desired  by  it  as  collateral  security  for  certain  sewing-machines 
to  be  furnished  by  it  to  Landis,  who  was  defendant's  nephew.  The 
machines  were  not  furnished,  and  the  notes  were  used  by  the  com- 
pany to  secure  a  prior  indebtedness  of  Landis  for  machines  pre- 
viously furnished  him  by  said  company.  Judgment  for  defendant, 
and  plaintiff  appealed. 

F.  M.  M.  Pennell,  John  M.  Gest,  John  Sparhawh,  Jr.,  and 
Atkinson,  for  the  appellant. 

Alfred  J.  Patterson,  J.  Howard  Neely,  and  Jeremiah  Lyons, 
for  the  appellee. 

Geeen,  J.  The  learned  court  below  distinctly  charged  the  jury 
that  if  the  notes  in  suit  were  given  for  a  past  indebtedness  of  Landis 


Chap.  V]         Manufactuking  Co.  vs.  Aughet,  153 

to  the  plaintiff,  their  verdict  should  be  in  favor  of  the  plaintiff;  but 
if  they  found  that  they  were  given  for  machines  to  be  furnished 
thereafter,  and  the  machines  were  not  delivered,  the  verdict  should 
be  for  the  defendant.  The  jury  found  for  the  defendant,  and 
thereby  determined  that  the  notes  were  given  for  machines  to  be 
furnished  in  the  future.  There  was  abundant  testimony  in  support 
of  the  defendant's  contention,  and  we  must  therefore  regard  it  as 
an  established  fact  that  the  notes  were  given  in  consideration  that 
machines  should  be  delivered  to  Landis  by  the  plaintiff  subsequently 
to  the  execution  and  delivery  of  the  notes  in  question.  It  is  beyond 
all  question  that  Landis  obtained  the  signature  of  the  defendant  to 
the  notes,  and  that  he  delivered  the  notes  so  signed  to  the  plaintiffs, 
who  received  and  kept  them,  and  affirmed  their  title  to  them  by 
bringing  suit  upon  them  against  the  defendant. 

For  the  purpose  of  obtaining  the  notes,  Landis  most  certainly 
acted  as  the  representative  of  the  plaintiffs,  and  they  conclusively 
accepted  the  fruits  of  his  act.  That  they  cannot  do  this  without 
being  subject  to  the  conditions  upon  which  he  obtained  the  notes, 
whether  he  had  authority  or  not  to  make  or  agree  to  those  condi- 
tions, is  too  well  settled  to  admit  of  any  doubt. 

The  whole  doctrine  was  well  expressed  by  Shaeswood,  J.,  in 
the  case  of  Mundorff  vs.  Wichersham,  63  Pa.  St,  87,  3  Am.  Rep. 
531:  "If  an  agent  obtains  possession  of  the  property  of  another, 
by  making  a  stipulation  or  condition  which  he  was  not  authorized 
to  make,  the  principal  must  either  return  the  property,  or  if  he 
receives  it,  it  must  be  subject  to  the  condition  upon  which  it  was 
parted  with  by  the  former  owner.  This  proposition  is  founded 
upon  a  principle  which  pervades  the  law  in  all  its  branches:  Qui 
sentit  commodum  sentire  debet  et  0)ius.  The  books  are  full  of 
striking  illustrations  of  it,  and  more  especially  in  cases  growing 
out  of  the  relation  of  principal  and  agent.  Thus  where  a  party 
adopts  a  contract  which  was  entered  into  without  his  authority,  he 
must  adopt  it  altogether.  He  cannot  ratify  that  part  which  is 
beneficial  to  himself  and  reject  the  remainder;  he  must  take  the 
benefit  to  be  derived  from  the  transaction  cum  onere." 

This  doctrine  is  so  reasonable  and  so  entirely  just  and  right  in 
every  aspect  in  which  it  may  be  considered,  and  it  has  been  enforced 
by  the  courts  with  such  frequency  and  in  such  a  great  variety  of 
circumstances,  that  its  legal  soundness  cannot  for  a  moment  be 
called  in  question. 

It  is  of  no  avail  to  raise  or  discuss  the  question  of  the  means  of 


154  Cases  02^  Agekct.  [Book  I 

proof  of  the  agent's  authority.  The  very  essence  of  the  rule  is, 
that  the  agent  had  no  authority  to  make  the  representation,  condi- 
tion, or  stipulation,  by  means  of  which  he  obtained  the  property, 
or  right  of  action  of  which  the  principal  seeks  to  avail  himself.  It 
is  not  because  he  had  specific  authority  to  bind  his  principal  for 
the  purpose  in  question  that  the  principal  is  bound,  but  notwith- 
Btanding  the  fact  that  he  had  no  such  authority.  It  is  the  enjoy- 
ment of  the  fruits  of  the  agent's  action  which  charges  the  principal 
with  responsibility  for  his  act. 

It  is  useless,  therefore,  to  enquire  whether  there  is  the  same 
degree  of  technical  proof  of  the  authority  of  the  agent,  in  the 
matter  under  consideration,  as  is  required  in  ordinary  cases  where 
an  affirmative  liability  is  set  up  against  a  principal  by  the  act  of 
one  who  assumes  to  be  his  agent.  There  the  question  is  as  to  the 
power  of  the  assumed  agent  to  impose  a  legal  liability  upon  another 
person;  and  in  all  that  class  of  cases,  it  is  entirely  proper  to  hold 
that  the  mere  declarations  of  the  agent  are  not  sufficient.  But  in 
this  class  of  cases  the  question  is  entirely  different.  Here  the  basis 
of  liability  for  the  act  or  declaration  of  the  agent  is  the  fact  that 
the  principal  has  accepted  the  benefits  of  the  agent's  act  or  declara- 
tion. Where  that  basis  is  made  to  appear  by  testimony,  the  legal 
consequence  is  established.  Mr.  Justice  Sharswood,  in  the  case 
above  cited,  after  enumerating  many  instances  in  which  the  doc- 
trine was  enforced,  sums  up  the  subject  thus:  *'  Many  of  these  cases 
are  put  upon  an  implied  authority,  but  the  more  reasonable  ground 
as  it  seems  to  me,  is  that  the  party  having  enjoyed  a  benefit  must 
take  it  cum  onere." 

We  are  of  opinion  that  the  learned  court  below  was  entirely  right 
in  the  treatment  of  this  case. 

Judgment  affirmed  in  each  of  these  cases. 


(36  New  York,  79.) 

SMITH  vs.  TRACY. 

^New  York  Court  of  Appeals,  January,  1S67.) 

Action  for  breach  of  warranty  on  a  sale  of  bank  stock.  Tracy 
owned  128,000  of  stock  in  the  Uollister  Bank  of  Buffalo.  He 
authorized  the  president,  Hollister,  to  sell  it  at  par  with  interest 


Chap.  V  ]  SMiin  vs.  Tkact.  155 

from  the  date  of  the  preceding  August  dividend,  and  executed  the 
proper  assignments  leaving  bhmks  for  the  name  of  the  purchaser. 
Hollister  sold  $10,000  worth  to  Smith,  representing,  what  he 
believed  to  be  true,  that  the  bank  was  solvent  and  that  the  invest- 
ment would  be  a  good  one.  Tracy  received  the  pay  for  the  stock 
from  Hollister  who  sold  the  residue  to  other  persons.  Tracy  knew 
nothing  of  Hollister's  representations,  though  he  believed  the  bank 
to  be  in  good  condition.  It  soon  afterwards  failed,  its  capital 
having  been  impaired  at  the  time  of  the  sale,  and  the  stockholders 
were  subjected  to  heavy  personal  liability.  Tracy  having  died, 
the  action  was  against  his  executor.  Verdict  for  plaintiH  and 
defendant  appealed. 

John  Ganson,  for  appellant. 
Chauncey  Tucker,  for  respondent. 

Porter,  J.  "We  concur  with  the  court  below  in  the  opinion  that 
Hollister  had  no  authority  to  warrant  the  stock,  which  his  princi- 
pal empowered  him  merely  to  sell.  The  rule  applicable  to  such  a 
case  is  stated  with  discrimination  and  accuracy  in  our  leading  text- 
book on  the  law  of  contracts:  *' An  agent  employed  to  sell,  with- 
out express  power  to  warrant,  cannot  give  a  warranty  which  shall 
bind  the  principal,  unless  the  sale  is  one  which  is  usually  attended 
with  warranty.''  (1  Parsons  on  Contracts,  5th  ed,,  60.)  It  was 
proved  that  no  such  custom  exists  in  connection  with  the  sale  of 
bank  stocks,  and  that  the  special  agent,  in  this  instance,  had  noth- 
ing but  a  naked  authority  to  sell. 

"We  also  concur  in  the  conclusion  of  the  able  and  learned  judge, 
who  delivered  the  prevailing  opinion,  that  there  was  not  a  ratification 
of  the  contract  by  the  principal  with  knowledge  of  the  unauthor- 
ized act  of  the  agent.  No  fraud  is  imputed  by  the  plaintiff,  either 
to  the  agent  or  the  principal.  He  sued  the  executor  on  a  contract 
which  the  testator  did  not  make,  and  he  took  upon  himself  the 
burden  of  showing  that  another  had  power  to  make  it  for  him. 
As  the  testator  was  chargeable  with  no  negligence  or  wrong,  and 
as  he  did  nothing  at  any  time  to  mislead  the  plaintiff  or  the  public, 
or  to  accredit  Hollister  as  empowered  to  make  general  engagements 
in  his  behalf,  the  only  mode  of  connecting  him  with  the  warranty 
was  by  showing  that  he  authorized  it  before  it  was  given,  or  that 
he  assented  to  it  afterward.  He  did  neither,  but  lived  and  died  in 
utter  ignorance  that  such  a  contract  had  ever  been  made. 

The  recovery  was  obtained  on  the  theory  that  the  warranty  was 


156  Oases  on  Ageiioy.  [Book  I 

within  the  terms  of  the  authority.  It  was  sustained  by  a  divided 
court  on  the  theory  that  although  the  testator  neither  authorized 
nor  assented  to  the  contract,  and  never  knew  of  its  existence,  his 
act  of  receiving  "the  proceeds  of  an  authorized  sale  of  his  own 
property,  estopped  his  executor  from  denying  the  collateral  engage- 
ment, unlawfully  entered  into  by  another  in  his  name.  We  think 
this  view  cannot  be  maintained.  It  is  founded  upon  a  misappre- 
hension of  the  principles,  settled  by  a  series  of  decisions  in  a  class 
of  cases  to  which  this  does  not  belong.  When  a  party  claims, 
receives  and  retains  the  property  of  another,  knowing  that  it  was 
obtained  by  an  unauthorized  use  of  his  name,  it  is  a  ratification  of 
the  assumed  agency,  which  evinces  his  assent  to  the  contract  or  the 
wrong.  The  courts,  however,  have  been  careful  in  the  leading 
cases  of  that  class,  to  note,  as  the  precise  ground  of  legal  liability, 
the  knowledge  of  the  facts  by  the  party  appropriating  the  benefit. 
{Murray  vs.  Binninger,  36  N.  Y.  61;  Fitzhugh  vs.  Sackett,  Id.; 
Banh  of  Beloit  vs.  Beale,  34  Id.  473,  475;  Keeler  vs.  Salisbury,  33 
Id.  653;  Farmers'  Loan  S  Trust  Co.  vs.  Walworth,  1  Id.  446; 
Palmerston  vs.  Huxjord,  4  Denio,  166,  168.)  So,  when  a  party 
takes  the  benefit  of  an  unauthorized  loan  on  purchase,  obtained  on 
his  credit  by  his  known  servant  or  employ^,  it  is  held  that  his  sub- 
sequent adoption  of  the  transaction  is  equivalent  to  an  original 
authority.  {Bolton  vs.  Eillersden,  1  Ld.  Eaym.,  224;  Precious 
vs.  Abel,  1  Esp.  350;  Rimcll  vs.  Sampayo,  1  Carr.  &  Payne,  254.) 
The  cases  on  which  the  respondent  mainly  relies,  are  those  in  which 
it  has  been  held,  that  when  an  authorized  agent,  acting  within  the 
scope  of  his  authority,  perpetrates  a  fraud  for  the  benefit  of  his 
principal,  and  the  latter  receives  the  fruits  of  it,  he  is  liable  as  for 
his  own  wrong.  .  {Bennett  vs.  Judson,  21  N.  Y.  238;  Elwell  vs. 
Chamberlain,  31  Id.  611.) 

These  authorities  rest  upon  the  principle,  that  when  a  party 
clothes  another  with  authority  to  speak  in  his  behalf,  and  indorses 
him  to  third  persons  as  worthy  of  trust  and  confidence,  those  who 
are  misled  by  the  falsehood  and  fraud  of  the  agent  are  entitled  to 
impute  it  to  the  principal.  The  latter  will  not  be  permitted  to 
retain  the  fruits  of  a  transaction  infected  with  fraud,  whether  the 
deceit,  which  he  seeks  to  turn  to  his  profit,  was  practiced  by  him 
or  by  his  accredited  agent.  In  such  a  case  he  cannot  separate  the 
legal  from  the  illegal  elements  of  the  contract,  and  appropriate  the 
advantages  it  secures,  while  he  rejects  the  corrupt  instrumentali- 
ties by  which  they  were  obtained. 


Chap.  V  ]  Smith  vs.  Tract.  157 

But  when,  as  in  the  present  case,  there  is  a  mere  special  author- 
ity to  sell  particular  property,  of  a  kind  not  usually  sold  with 
warranty,  the  buyer,  who  alleges  a  warranty  by  the  agent,  must 
show  that  the  engagement  was  one  he  was  empowered  to  make  in 
behalf  of  his  principal.  The  receipt  of  the  proceeds  of  the  sale,  in 
ignorance  of  any  such  undertaking,  is  neither  an  assent  to  the 
breach  of  duty  nor  an  extension  of  the  authority  of  the  agent. 
The  question  is  one  as  to  the  existence  and  extent  of  the  power, 
and  not  as  to  a  fraud  practiced  by  an  agent  acting  within  the  scope 
of  his  authority. 

The  distinction  between  the  different  classes  of  cases,  to  which 
we  have  referred,  is  sharply  defined  in  two  leading  decisions, 
both  made  by  the  same  judges  and  at  the  same  term  of  court. 
{Bennett  vs.  Judson,  21  N.  Y.  238;  Condit  vs.  Baldwin,  Id.  219, 
224,  225,  78  Am.  Dec.  137.)  In  Bennett  vs.  Judso?i,  the  defend- 
ant employed  an  agent  to  negotiate  sales  of  his  western  lands.  The 
latter  effected  a  sale  by  making  representations  as  to  the  quality 
and  location  of  the  land,  which  proved  to  be  grossly  untrue.  The 
principal,  who  received  and  retained  the  price,  was  prosecuted  by 
the  vendee  for  the  fraud,  and  he  insisted,  by  way  of  defense,  that, 
though  he  authorized  his  agent  to  negotiate  the  sale,  he  did  not 
instruct  him  to  cheat  the  purchaser;  that  the  statements  ought  not 
to  be  imputed  to  him,  for  he  did  not  make  them  personally;  and 
that  they  could  not  be  deemed  fraudulent,  for  when  they  were 
made,  neither  he  nor  the  agent  knew  whether  they  were  true  or 
false.  The  court  held,  that  the  principal  could  not  claim  immunity 
on  the  ground  that  the  fraud  was  perpetrated  through  the  instru- 
mentality of  his  agent,  and  that  a  material  misstatement,  made  by 
one  who  neither  knows  nor  believes  it  to  be  true,  is  just  as  much  a 
fraud  on  the  party  with  whom  he  deals  as  if  he  knew  it  to  be  false. 

In  Condit  vs.  Baldwin,  the  doctrine  of  involuntary  ratification 
was  sought  to  be  extended  to  a  case  where  the  element  of  fraud  was 
wanting,  and  where  the  principal,  without  knowledge  of  the  facts, 
had  received  the  fruits  of  a  transaction,  in  which  the  special  agent 
had  exceeded  the  limits  of  his  actual  and  apparent  authority.  The 
court  held  that,  under  such  circumstances,  the  application  of  the 
rule  recognized  in  the  case  of  Bennett  vs.  Judson  would  be  inappro- 
priate and  unwarranted.  The  question  arose  on  a  defense  of  usury. 
The  plaintiff  had  intrusted  money  to  a  special  agent  for  investment. 
The  latter  lent  it  in  the  name  of  his  principal,  but  transcended  his 


158  -  Cases  on  Agency.  [Book  I 

power  by  contraction  with  the  borrower  for  the  payment  of  a  bonna 
on  the  amount.  The  plaintiii,  in  ignorance  of  this,  received  the 
security  taken  for  the  loan,  and  was  met,  in  an  action  afterwards 
brought  to  enforce  it,  with  the  defense,  that,  by  accepting  it,  she 
had  adopted  the  unknown  and  unauthorized  act  of  the  agent.  The 
opinion  of  the  court  was  delivered  by  the  present  chief  judge,  who 
aptly  illustrated  the  distinction  to  which  we  have  alluded,  by  a 
reference  to  the  leading  cases  of  Wilson  vs.  Tiwiman  and  Bush  vs. 
Buckingham.  **  Where  a  landlord  authorized  a  bailiff  to  distrain 
for  rent  due  from  his  tenant,  directing  him  not  to  take  anything 
except  on  the  demised  premises,  and  the  bailiff  distrained  cattle  of 
another,  supposing  them  to  be  the  tenant's,  beyond  the  boundary 
of  the  farm,  and  the  cattle  thus  taken  were  sold,  and  the  landlord 
received  the  proceeds,  the  landlord  was  held  not  to  be  liable  in 
trover  for  the  value  of  the  cattle,  unless  it  was  found  that  he  rati- 
fied the  act  of  the  bailiff  with  knowledge  of  the  irregularity,  or 
chose  without  inquiry  to  take  the  risk  upon  himself  and  to  adopt 
the  whole  act;  and  it  was  also  held  that  by  adopting  and  ratifying 
what  he  had  authorized,  he  did  not  adopt  and  ratify  the  unauthor- 
ized acts  of  his  agent." 

In  Bush  vs.  Buclcingham  (2  Vent.,  83),  the  plaintiff  made  a  loan 
of  fifty  pounds  at  a  legal  rate  of  interest.  She  referred  the  bor- 
rower to  her  scrivener,  who  would  draw  the  bond  to  secure  the 
loan;  and  the  scrivener,  in  error  and  against  her  will,  included 
therein  more  than  lawful  interest.  In  a  suit  on  the  bond,  the 
defendant  interposed  the  defense  of  usury,  but  it  was  overruled, 
as  there  was  no  intent  on  her  part,  to  take  or  receive  more  than  law- 
ful interest;  and  it  was  held  that  by  commencing  suit  on  the  bond, 
she  did  not  ratify  the  act  of  her  agent  in  providing  for  the  pay- 
ment of  more  than  legal  interest,  but  that  she  might  recover  the 
amount  loaned  with  lawful  interest.     (21  N.  Y.,  225,  226.) 

The  doctrine  of  the  case  of  Bennett  vs.  Judson,  in  its  legitimate 
application  to  frauds  perpetrated  through  an  agent,  acting  within 
the  scope  of  his  power,  was  afterwards  reaffirmed  in  Eliodl  vs. 
Chamberlain  (31  N.  Y.,  611).  The  rule  announced  in  Condit  vs. 
Baldwin,  has  since  been  recognized  as  that  appropriate  to  a  case, 
where  the  question  arises  on  the  authority  of  the  agent  to  enter 
into  a  collateral  contract  in  behalf  of  his  principal.  Bell  vs.  Bay, 
32  N.  Y.,  165,  178.)  There  is  no  antagonism  between  the  two 
classes  of  cases;  and  the  distinction  between  the  subjects  to  which 


CliH}).  V]  Smith  vs.  Tracy,  15y 

they  are  respectively  applicable  and  the  principles  on  which  they 
rest,  is  overlooked  by  those  who  suppose  these  decisions  to  be 
inharmonious. 

In  the  case  before  us,  it  is  claimed  that  the  receipt  by  the  testa- 
tor of  the  proceeds  of  an  authorized  sale,  is  to  be  deemed  an 
adoption  of  a  contract,  made  without  his  authority,  and  to  which 
he  never  knowingly  assented.  Such  a  ruling  would  be  subversive 
of  well-settled  legal  principles,  and  would  open  the  door  to  illim- 
itable frauds  by  brokers,  factors,  attorneys  and  others,  clothed 
with  limited  power  and  occupying  strictly  fiduciary  relations. 
{Oiuings  vs.  Hull,  9  Peters,  608,  629;  Bell  vs.  Cunningham,  3  Id., 
69,  76,  81;  Bradg  v.  Todd,  99  Eng.  Com.  Law,  591,  601,  605; 
Freeman  vs.  Kosher,  66  Id.,  787;  Seymour  vs.  WycTcoff,  10  N.  Y., 
213.)  In  the  language  of  Judge  Story,  in  the  first  of  these  cases, 
**  no  doctrine  is  better  settled,  both  upon  principle  and  authority 
than  this;  that  the  ratification  of  the  act  of  an  agent  previously 
unauthorized,  must,  in  order  to  bind  the  principal,  be  with  a 
full  knowledge  of  all  the  material  facts." 

The  plaintiff  is  chargeable  with  notice  of  the  extent  and  limits 
of  the  power  of  the  special  agent  from  whom  he  purchased. 
(Nixo7i  vs.  Palmer,  4  Sold.  398;  Sage  vs.  Sherman,  Lalor's  Supp., 
147,  152;  Beals  vs.  Allen,  18  Johns,  363,  366,  9  Am.  Dec.  221.) 
He  knew  that  Hollister  was  not  the  owner  of  the  stock  he  assumed 
to  sell;  and  he  was  content  to  take  a  warranty  from  one,  who  had 
neither  actual  nor  apparent  authority  to  bind  his  principal  by  such 
an  engagement.  It  was  a  single  and  isolated  transaction,  unaided 
by  any  extrinsic  fact  or  any  antecedent  relation;  and  upon  its  own 
merits  it  must  stand  or  fall.  The  sole  authority  of  Hollister  was 
to  sell  the  stock  at  par,  with  interest  from  the  date  of  the  last 
dividend,  and  to  insert  the  name  of  the  purchaser  in  the  blank, 
left  in  the  body  of  the  transfer  written  and  signed  by  Mr.  Tracy. 
The  representations  to  the  plaintiff  were  not  even  made  in  the 
testator's  name;  and  the  purchaser  who  assumed  the  risk  of 
bargaining  without  inquiry,  cannot  transfer  to  the  defendant,  a 
loss  resulting  from  his  own  neglect  and  incaution. 

The  judgment  should  be  reversed  and  a  new  trial  ordered  with 
costs  to  abide  the  event. 


160  Cases  on  Agexct.  [Book  I 

(18  Wallace,  332.) 

COOK    vs.     TULLIS. 

(Supreme  Court  of  the  United  States,  October,  1873. J 

Cook  and  others,  who  were  trustees  in  bankruptcy  of  one 
Homans,  filed  a  bill  in  equity  to  set  aside  the  transfer  of  a  certain 
note  for  $7,000  eecnred  by  mortgage,  alleged  to  have  been  made  by 
Homans  to  defendant  Tnllis  in  violation  of  the  bankrupt  act,  on 
the  ground  that  it  was  made  for  the  purpose  of  giving  Tullis  a 
preference  over  other  creditors. 

Homans  had  been  a  banker  and  had  frequently  purchased  United 
States  bonds  for  Tullis,  and  these  bonds  had  been  left  in  Homans* 
possession  for  safe  keeping,  in  a  separate  package  marked  with 
Tullis'  name.  On  one  occasion  Tullis  had  permitted  Homans  to 
use  $20,000  worth  of  these  bonds,  on  the  latter's  depositing  in  the 
package  negotiable  paper  of  like  amount  until  the  bonds  were 
returned.  Afterwards,  and  in  March,  1869,  Homans  took,  with- 
out permission,  $6,000  of  the  bonds,  depositing  bills  receivable  in 
their  place,  and  in  April  following  he  took  out  these  bills  receivable 
and  substituted  a  note  and  mortgage  of  $7,000  belonging  to  him, 
made  by  one  Hardesty,  dated  April  17,  1869,  and  payable  in  90 
days.  This  note  and  mortgage  not  being  paid,  Homans  removed 
them  from  the  package  and  placed  them  in  the  hands  of  his  attor- 
neys, with  instructions  to  give  notice  that  if  not  paid  suit  would 
be  begun.     Afterwards,  and  on  August  26,  1869,  Homans  failed. 

Tullis  was  soon  afterwards  informed  of  the  substitution  of  the 
note  and  mortgage  for  his  bonds,  and  signified  his  acceptance  of 
them,  and  gave  instructions  to  the  attorneys  to  foreclose  the  mort- 
gage. On  the  day  of  his  failure,  also,  Homans  informed  the 
attorne3's  that  $6,000  of  the  proceeds  of  the  note  and  mortgage 
belonged  to  Tullis,  and  directed  them  to  account  to  him  for  that 
sum.  Tullis  had  no  notice  that  Homans  was  insolvent  until  the 
day  of  his  failure,  and  Homans  testified  that  at  the  time  he  took 
the  bonds  he  did  not  comtemplato  insolvency,  and  that  he  supposed 
Tullis  would  not  object  so  long  as  he  was  secured.  Homans  was 
adjudged  a  bankrupt  on  September  20,  1869,  on  a  petition  filed 
September  13,  and  in  December  complainants  were  appointed  trus- 
tees.    Other  facts  appear  in  the  opinion. 

The  court  below  adjudged  that  defendant  was  entitled  to  $6,000 


Ohap.  V]  Cook  vs.  Tltltjs.  161 

of  the  proceeds  of  the  note  and  mortgage,  and  complainants  to  the 
residue.     Complainants  appealed. 

George  Iloadly  and  E.  M.  Johiison,  for  appellant. 
H.  A.  Morrill,  contra. 

Mr.  Justice  Field,  after  stating  the  facts  of  the  case,  delivered 
the  opinion  of  the  court,  as  follows:  (after  decidip.g  that  the  trans- 
action did  not  present  a  case  of  preference  made  by  a  bankrupt  to 
one  creditor  over  another,  within  the  meaning  of  the  Bankrupt 
Act.) 

This  suit  must  proceed,  therefore,  if  at  all,  not  on  the  ground  of 
an  alleged  preference  to  a  creditor,  in  violation  of  the  Bankrupt 
Act,  but  upon  the  ground  that  the  title  to  t^e  note  and  mortgage 
never  passed  from  the  bankrupt,  because  the  ratification  of  hia 
unauthorized  transaction  was  not  made  until  after  the  period  when 
the  rights  of  the  trustees  attached;  or  on  the  ground  that  the  note 
and  mortgage  never  became  subject  in  the  hands  of  the  bankrupt 
to  the  claim  of  the  defendant  as  the  investment  of  the  latter'a 
property,  because  the  bonds  appropriated  were  not  first  sold  and 
their  proceeds  used  in  the  purchase  of  the  note  and  mortgage. 

Both  of  these  grounds  were  urged  by  counsel  of  the  appellants 
and  it  is  on  their  disposition  that  the  case  must  be  determined. 

The  substitution  of  the  note  and  mortgage  in  the  place  of  the 
bonds  was  approved  by  the  defendant  immediately  upon  being 
made  acquainted  with  the  facts.  This  approval  constituted  a  rati- 
fication of  the  transaction.  The  general  rule  as  to  the  effect  of  a 
ratification  by  one  of  the  unauthorized  act  of  another  respecting 
the  property  of  the  former,  is  well  settled. 

The  ratification  operates  upon  the  act  ratifi:ed  precisely  as  though 
authority  to  do  the  act  had  been  previously  given,  except  where  the 
rights  of  third  parties  have  intervened  between  the  act  and  the 
ratification.  The  retroactive  efficacy  of  the  ratification  is  subject 
to  this  qualification.  The  intervening  rights  of  third  persons  can- 
not be  defeated  by  the  ratification.  In  other  words,  it  is  essential 
that  the  party  ratif37ng  should  be  able  not  merely  to  do  the  act 
ratified  at  the  time  the  act  was  done,  but  also  at  the  time  the  rati- 
fication was  made.  As  siaid  in  one  of  the  cases  cited  by  counsel, 
**  the  ratification  is  the  first  proceedings  by  which  he  (the  principal 
ratifying)  becomes  a  party  to  the  transaction,  and  he  cannot  acquire 
or  confer  the  rights  resulting  from  that  transaction  unless  in  a 
11 


162  Cases  on  Agency.  [Book  I 

position  to  enter  directly  npon  a  similar  transaction  himself.  Thus, 
if  an  individual  pretending  to  be  the  agent  of  another  should  enter 
into  a  contract  for  the  sale  of  land  of  his  assumed  principal,  it 
would  be  impossible  for  the  latter  to  ratify  the  contract  if,  between 
its  date  and  the  attempted  ratification,  he  had  himself  disposed  of 
the  property.  He  could  not  defeat  the  intermediate  sale  made 
by  himself  and  impart  validity  to  the  sale  made  by  the 
pretended  agent,  for  his  power  over  the  property  or  to  contract 
for  its  sale  would  be  gone/'  McCraclcen  vs.  City  of  San  Fran- 
cisco, 16  Cal.  62-4;  ante, .  On  the  same  principle,  liens  by  attach- 
ment or  judgment  upon  the  property  of  a  debtor  are  not  affected 
by  his  subsequent  ratification  of  a  previous  unauthorized  transfer 
of  the  property.  Taylor  vs.  Rolinson,  14  California,  396;  Wood 
vs.  McCain,  7  Alabama,  806,  42  Am.  Dec.  612;  Bird  vs.  Brown,  4 
Exchequer,  799. 

The  question,  therefore,  in  this  case  is  whether  any  rights  of 
third  parties  did  thus  intervene  between  the  act  of  substitution 
made  by  Homans  and  its  adoption  and  ratification  by  Tullis,  which 
defeated  the  retroactive  efficacy  of  the  ratification.  And  the  test 
is,  as  already  indicated,  could  the  parties  have  made  the  transac- 
tion at  the  time  of  the  ratification  without  contravening  the  pro- 
visions of  the  Bankrupt  Act? 

It  is  asserted  by  the  appellants  that  the  rights  of  the  trustees 
extend  not  only  to  all  property  of  the  bankrupt  in  his  possession 
when  proceedings  in  bankruptcy  were  instituted  against  him,  but 
also  to  all  property  transferred  by  the  bankrupt  within  four  months 
previously  to  a  creditor  in  order  to  give  him  a  preference  over 
other  creditors,  or  transferred  by  the  bankrupt  within  six  months 
previously  to  any  one  to  defeat  or  evade  the  operation  of  the  Bank- 
rupt Act,  the  grantee  in  both  cases  knowing,  or  having  reasonable 
cause  to  believe,  that  the  grantor  was,  at  the  time,  insolvent 
or  that  he  then  contemplated  insolvency.  Admitting  this 
to  be  so,  it  does  not  follow  that  the  trustees  acquired  any  right 
to  the  note  and  mortgage  in  question.  They  were  not  trans- 
ferred to  the  defendant,  as  already  stated,  to  give  a  preference 
to  one  creditor  of  the  bankrupt  over  another,  for  the  defendant 
was  not  a  creditor  of  Homans  at  the  time,  nor  were  they  trans- 
ferred to  him  to  evade  or  defeat  any  of  the  provisions  of  the 
Bankrupt  Act;  the  transaction  was  neither  designed  nor  calcu- 
lated to  have  any  such  effect.     Homans  was  not  insolvent  at  the 


Chap.  V  ]  Cook  vs.  Tullis.  163 

time,  nor  did  he  contemplate  insolvency.  But  even  if  he  had  been 
then  insolvent,  the  transaction  would  not  have  been  the  subject  of 
just  complaint  on  the  part  of  his  creditors,  if  made  with  the 
approval  of  the  defendant  whose  bonds  were  taken.  There  is  no 
pretence  that  the  property  substituted  was  not  equally  valuable  with 
that  taken,  or  that  the  estate  of  the  bankrupt  was  any  the  less  avail- 
able to  his  creditors.  A  fair  exchange  of  values  may  be  made  at 
any  time,  even  if  one  of  the  parties  to  the  transaction  be  insolvent. 
There  is  nothing  in  the  Bankrupt  Act,  either  in  its  language  or 
object,  which  prevents  an  insolvent  from  dealing  with  his  property, 
selling  or  exchanging  it  for  other  property  at  any  time  before  pro- 
ceedings in  bankruptcy  are  taken  by  or  against  him,  provided 
Buch  dealings  be  conducted  without  any  purpose  to  defraud  or 
delay  his  creditors  or  give  preference  to  any  one,  and  does  not 
impair  the  value  of  his  estate.  An  insolvent  is  not  bound,  in  the 
misfortune  of  his  insolvency,  to  abandon  all  dealing  with  his  prop- 
erty; his  creditors  can  only  complain  if  he  waste  his  estate  or  give 
preference  in  its  disposition  to  one  over  another.  His  dealing  will 
stand  if  it  leave  his  estate  in  as  good  plight  and  condition  as 
previously. 

We  do  not  think,  therefore,  that  the  rights  of  the  trustees,  though 
relating  back  four  months  so  as  to  avoid  preferences  to  creditors, 
and  six  months  to  avoid  transfers  to  others,  in  fraud  of  the  act, 
and  thus  going  back  of  the  ratification,  touched  the  transaction 
in  question  or  prevented  the  ratification  from  having  complete 
retroactive  efficacy. 

The  position  of  counsel,  that  the  ratification,  if  sustained,  only 
extended  to  the  conversion  of  the  bonds,  and  merely  operated  to 
deprive  the  transaction  of  its  tortious  aspect,  all  else  consisting  of 
dealings  by  Homans  with  his  own  property,  is  not  tenable.  The 
answer  to  it  is,  that  the  ratification  was  of  the  whole  transaction 
taken  together;  that  of  appropriation  of  the  bonds  upon  substitut- 
ing and  equivalent  in  value  for  them,  not  of  a  part  without  the 
rest,  not  of  the  appropriation  without  the  substitution.      •      •    • 

But  if  we  lay  aside  the  doctrine  of  ratification  as  inapplicable, 
and  assume  that  the  transaction  could  not  have  been  made  by  the 
parties  after  the  failure  of  Homans,  and,  therefore,  that  the 
previous  substitution  could  not  then  have  been  ratified,  and  treat 
the  cause  as  one  of  simple  misappropriation  of  property  of  the 
defendant,  still  the  trustees  must  fail  in  their  suit.  They  took 
the  property  of  the  bankrupt  subject  to  all  legal  and  equitable 


164  Cases  on"  Age^^ct.  [Book  I 

claims  of  others.  They  were  affected  by  all  the  equities  which  could 
be  urged  against  him.  Now,  it  is  a  rule  of  equity  jurisprudence, 
perfectly  well  settled  and  of  universal  application,  that  where 
property  held  upon  any  trust  to  keep,  or  use,  or  invest  it  in  any 
particular  way,  is  misapplied  by  the  trustee  and  converted  into 
different  property,  or  is  sold  and  the  proceeds  are  thus  invested, 
the  property  may  be  followed  wherever  it  can  be  traced  through 
its  transformations,  and  will  be  subject,  when  found  in  its  new 
form,  to  the  rights  of  the  original  owner  or  cestui  que  trust. 

In  the  case  of  Taylor,  assignee  of  a  bankrupt,  against  Plumber, 
8  Maule  &  Selwyn,  562,  this  doctrine  is  well  illustrated.  There  a 
draft  for  money  was  intrusted  to  a  broker  to  buy  exchequer  bills 
for  his  principal,  and  the  broker  received  the  money  and  misapplied 
it  by  purchasing  American  stock  and  bullion,  intending  to  abscond 
with  them,  and  did  abscond,  but  was  taken  before  he  quitted  Eng- 
land. Thereupon  he  surrendered  the  stock  and  bullion  to  his 
principal,  who  sold  the  whole  and  received  the  proceeds.  The 
broker  became  bankrupt  on  the  day  he  received  and  misapplied  the 
money,  and  his  assignees  sued  for  the  proceeds  of  the  stock  and 
bullion.  But  the  court  decided  that  the  principal  was  entitled  to 
the  proceeds  as  against  the  assignees,  holding  that  if  the  property 
in  its  original  state  and  form  is  covered  with  a  trust  in  favor  of  the 
principal,  no  change  of  that  state  and  form  can  divest  it  of  such 
trust  and  give  to  the  trustee,  or  those  who  represent  him  in  right, 
any  more  valid  claim  in  respect  to  it  than  he  previously  had;  and 
that  it  makes  no  difference  in  reason  or  law  into  what  other  form, 
different  from  the  original,  the  change  may  have  been  made,  for 
the  product  of,  or  substitution  for,  the  original  thing  still  follows 
the  nature  of  the  thing  itself,  as  long  as  it  can  be  ascertained  to  be 
such,  and  that  the  right  only  ceases  when  the  means  of  ascertain- 
ment fail. 

It  is  contended  that  the  doctrine  of  this  case  does  not  apply 
because  the  note  and  mortgage  were  not  purchased  with  the  pro- 
ceeds of  the  bonds  taken,  but  were  substituted  for  them.  We  do 
dot  think  this  fact  takes  the  present  case  from  the  principle  upon 
which  the  other  proceeds,  that  property  acquired  by  a  wrongful 
appropriation  of  other  property  covered  by  a  trust,  is  itself  subject 
to  the  same  trust.  It  cannot  alter  the  case  that  the  newly  acquired 
property,  instead  of  being  purchased  with  the  proceeds  of  the  origi- 
nal property,  is  obtained  by  a  direct  exchange  for  it.  The  real 
question  in  both  cases  is,  what  hatf ■  taken  the  place  of  the  property 


Chap.  V]  Cook  vs.  Tullis.  166 

in  its  original  form  ?  Whenever  that  can  be  ascertained,  the  prop- 
erty in  the  changed  form  may  be  claimed  by  the  original  owner  or 
the  cestui  que  trust,  and  assignees  and  trustees  in  bankruptcy  can 
acquire  no  interest  in  the  property  in  its  changed  form  which  will 
defeat  his  rights  in  a  court  of  equity. 

Decree  aflBrmed. 


(28  Vebmokt,  338.) 

WOODWAKD  vs.  HAKLOW. 

(Supreme  Court  of  Vermont,  February,  1856.  J 

Action  of  book  account.  While  Woodward  was  dangerously  sick 
and  bereft  of  reason,  Harlow  sued  him  and  attached  his  property 
as  for  a  debt  due  him  from  Woodward,  though  in  fact  Woodward 
did  not  then  owe  him  anything.  Eeuben  Marks,  who  was  Wood- 
ward's partner  in  business,  in  order  to  secure  the  release  of  Wood- 
ward's property,  let  Harlow  have  five  notes  belonging  to  Wood- 
ward as  security,  taking  the  receipt  mentioned  in  the  opinion. 
This  was  done  without  Woodward's  knowledge  or  authority.  When 
Woodward  recovered,  he  disapproved  of  Marks'  act  and  demanded 
back  the  notes,  which  Harlow  refused  to  return.  Woodward  then 
brought  this  action  to  recover  of  Harlow  the  amount  of  two  of  the 
notes  which  he  had  collected,  and  also  the  value  of  the  other  three. 
The  court  below  allowed  him  to  recover  the  amount  collected,  but 
disallowed  his  claim  as  to  the  other  three  notes. 

F.  Fetter,  for  plaintifE. 

3.  H.  Hodges,  for  defendant. 

Bennett,  J.  The  questions  arise  in  this  case  upon  an  auditor's 
report,  in  an  action  on  book;  and  the  plaintiff  claims  to  be  allowed 
for  three  certain  notes,  which  went  into  the  defendant's  hands  upon 
the  terms  specified  by  the  auditor,  and  which  had  not  been 
collected  at  the  time  of  the  audit,  and  which  were  disallowed  by 
the  county  court.  No  question  is  raised,  except  as  to  the 
uncollected  notes;  and  we  are  to  inquire  whether,  upon  the  facts 
reported,  an  action  of  account,  at  common  law,  would  lie  to  recover 
the  amount  of  these  notes.  On  the  2Gth  day  of  September,  1853, 
the  defendant  gave  to  one  Reuben  Marks  his  receipt  for  five  notes. 
Including  the  three  in  question,  to  hold  the  same,  or  collect,  aa 


166  Oases  on  Agency.  [Book  T 

security  for  the  plaintiff's  account,  due  to  tlie  defendant;  and  it  is 
added  in  the  receipt,  that  the  defendant  is  to  hold  the  notes  or 
money  until  the  plaintiff's  account  is  settled,  and  then  he  is  to 
account  to  the  plaintiff  for  them,  after  the  costs  of  the  suit  then 
pending  had  been  paid.  The  case  shows  that  when  Marks  turned 
out  these  notes  to  the  defendant.  Woodward  was  not  in  his  right 
mind,  and  that  he  had  no  authority  to  do  it  from  Woodward;  and 
it  is  found  that,  in  point  of  fact,  the  plaintiff  was  not  indebted  to 
the  defendant.  Woodward  never  was  satisfied  with  the  action  of 
Marks,  and  he  demanded  the  notes  of  the  defendant,  and  required 
him  to  settle  on  account  of  them,  and  this,  the  report  says,  the 
defendant  declined  to  do,  except  upon  the  terms  of  the  receipt. 

No  doubt,  when  notes  go  into  the  hands  of  a  bailiff  or  receiver 
under  a  contract,  he  may  be  called  to  an  account,  in  the  common 
law  action;  but  the  defendant  insists  he  was  a  tort  feazor  as  against 
the  plaintiff,  in  getting  the  possession  of  these  notes  by  the  way  of 
marks. 

Suppose  it  be  so,  could  not  the  plaintiff  affirm  the  contract  made 
by  Marks,  on  his  account,  with  the  defendant?  We  think  he  may; 
and  by  bringing  his  action  on  book,  and  claiming  an  allowance  for 
these,  he  has  adopted  and  confirmed  the  acts  of  Marks;  and  it  is 
not  for  the  defendant  to  insist  that  the  taking  and  holding  the 
notes  was  tortious  on  his  part.  This  form  of  action  can  only  be 
maintained  on  the  ground  of  a  ratification.  See  Story  on  Agency, 
sec.  259.  It  is  of  no  consequence  that  the  plaintiff  at  first  dis- 
approved of  the  acts  of  Marks.  This  could  not  have  the  effect  to 
prevent  a  subsequent  ratification  of  the  acts.  His  disapproval 
of  the  acts  of  Marks  was  at  any  time  countermandable,  and  can- 
not have  the  effect  by  way  of  estoppel  or  otherwise,  to  conclude 
the  plaintiff  from  a  subsequent  adoption  of  the  assumed  agency. 

It  is  true,  as  held  in  Smith  vs.  Hodson,  4  Term,  211,  that  if  he 
adopts  a  part  he  must  adopt  the  entire  contract.  But  it  is  found 
that  nothing  was  due  from  the  plaintiff  to  the  defendant;  and  if  the 
defendant  had  a  claim  for  costs  in  the  action  then  pending,  he 
might  have  charged  them  in  his  account,  and  had  them  adjusted  in 
the  present  action.  The  expression  in  the  receipt,  that  the  defend- 
ant is  to  account,  *'  after  the  costs  of  suit  have  been  paid,"  does  not 
make  the  payment  of  such  costs  a  condition  precedent  to  the  right 
of  bringing  an  action,  but  may  give  to  the  defendant  a  right  of 
retainer  to  an  amount  equal  to  such  costs. 

Adopting  the  whole  contract  then,  as  expressed  in  the  receipt, 


Chap.  V]  "Woodward  vs.  IlAiiLuw.  1G7 

we  think  there  is  notliing  to  conclude  this  action.  "We  think  the 
defendant  may  Avell  be  sued  in  an  action  of  account  as  at  common 
law  for  the  notes;  and  by  the  statute  of  1852,  a  recovery  can  be  had 
for  those  items  in  the  pkiintiU's  account  in  the  action  on  book. 

The  judgment  of  the  county  court  is  reversed,  and  judgment  for 
plaintiir,  inchiding  in  the  damages  the  three  notes  uncollected  at 
%hb  time  of  the  audit  and  the  interest. 


V. 

WHAT  AMOUNTS  TO   A    RATIFICATION'. 


(110  Missouri,  546.) 

HAWKINS  vs.  McGROARTY. 

f Supreme  Court  of  Missouri,  April,  189S.J 

Action  to  enforce  specific  performance  of  a  contract.  Opinion 
states  the  facts. 

Gibson,  Bond  S  Gibson,  for  appellants. 

W.  P.  Macklin  d  W.  S.  Bodley,  for  respondents. 

Brace,  J.  By  an  act  approved  March  19,  1887,  the  statute  of 
'*  frauds  and  perjuries,"  section  2513,  Kevised  Statutes,  1879,  was 
amended  by  adding  the  following  clause  to  that  section:  "And  no 
contract  for  the  sale  of  lands  made  by  an  agent  shall  be  binding 
upon  the  principal  unless  such  an  agent  is  authorized  in  writing  to 
make  said  contract."  This  is  an  action  in  the  nature  of  a  bill  in 
equity  to  specifically  enforce  the  written  contract  of  an  agent  in  the 
name  of  his  principal  for  a  sale  of  land  made  by  the  agent,  not 
within  the  terms  of  such  agent's  written  authority,  upon  the  ground 
of  a  verbal  ratification  of  such  sale  by  the  principal  after  he  was 
informed  thereof.  In  the  facts  of  the  case  there  is  no  element  of 
equitable  estoppel.  Plaintiff's  evidence  tended  at  most  only  to 
prove  that  the  defendant,  when  informed  by  letter  of  the  sale,  did 
not  manifest  to  the  agent  any  disapprobation  thereof,  but  directly 
thereafter  sold  to  another  person. 

The  trial  court  ruled  that  the  written  authority  must  author- 
ize the  agent  to  make  the  contract  which  he  does  make,  in  order  to 


168  Cases  ois"  AGE]srcT.  [Book  I 

bind  the  principal,  and  unless  it  does  so  the  ratification  thereof 
must  be  in  writing  to  bind  him,  citing  Story  on  Agency  (9  ed.) 
sec.  242,  and  Dis;  atcli  Line  vs.  Mfg.  Co.,  12  N.  H.  205,  37  Am. 
Dec.  203,  in  which  it  was  held  that  "  a  ratification  of  an  act  done  by 
one  assuming  to  be  an  agent  relates  back,  and  is  equivalent  to  a 
prior  authority.  When,  therefore,  the  adoption  of  any  particular 
form  or  mode  is  necessary  to  confer  the  authority  in  the  first 
instance,  there  can  be  no  valid  ratification  except  in  the  same 
manner." 

At  common  law,  where  a  contract  is  required  to  be  under  seal,  a 
ratification  must  also  be  under  seal.  I  American  &  English 
Encyclopedia  of  Law,  436;  Story  on  Agency,  sec.  49,  and  author- 
ities in  note  3;  llechem  on  Agency,  sec.  137,  and  authorities  note 
6,  same  page.  And  upon  the  same  principle  the  last  author, 
stating  the  general  rule,  says,  "  If,  therefore,  sealed  authority  was 
indispensable,  sealed  ratification  must  be  shown;  and  if  written 
authority  was  required,  written  ratification  must  appear."  Sec, 
136. 

In  Pollard  &  Co.  vs.  Oihls,  55  Ga.  45,  it  was  held  that  "  where  a 
crop  lien  for  fertilizers  is  executed  by  an  agent  who  acts  without 
authority  from  the  principal,  and  in  his  absence,  and  the  lien  is 
under  seal,  proof  of  the  ratification  by  the  principal  must  be  in 
writing  and  under  seal." 

In  R'tgan  vs.  ChenauU,  78  Ky.  54G,  under  a  statute  which  pro- 
vided that  "  no  person  shall  be  bound  as  the  surety  of  another  by 
the  act  of  an  agent,  unless  the  authority  of  the  agent  is  in  writing, 
signed  by  the  principal;"  it  was  held  that  subsequent  verbal  ratifi- 
cation would  not  bind  the  surety;  that  to  so  hold  would  be  to 
defeat  the  object  of  the  statute. 

In  Palmer  vs.  Williams,  24  Mich.  328,  under  a  statute  of  frauds, 
the  same  as  our  own,  before  the  adoption  of  the  amendment  set 
out,  it  was  held  that  *'  ratification,  if  not  made  in  writing,  with  due 
knowledge  of  the  circumstances,  could  only  be  made  out  by  such 
conduct  on  the  part  of  the  principal  as  would  equitably  estop  him 
from  insisting  on  his  rights.  And  such  an  estoppel  would  not  be 
made  out  unless  defendants  had  been  so  far  misled  by  him  to  their 
own  prejudice,  that  justice  demanded  their  protection  against  him. 

*  *  *  In  the  absence  of  any  conduct  designed  or  calculated 
to  mislead,  mere  delay  will  not  deprive  an  owner  of  his  estate,  legal 
or  equitable,  uutil  barred  by  some  clear  rule  of  equity." 

There  is  no  such  bar  in  the  facts  of  this  case.  liiemaus  was  author- 


Cliap.  V  ]  Hawkins  v.  McGeoartt.  169 

ized  in  writing  by  the  defendant  Maull  to  sell  his  property  for  $1,- 
400.  On  the  ninth  of  July  he  sold  to  plaintiff  for  81,300,  who  paid 
Hiemans  $40  earnest  money,  and  received  from  him  a  receipt  for 
that  amount  on  account  of  the  sale.  Hiemans  says  he  immediately 
wrote  Maull  a  letter,  and  that  Maull  called  the  next  day,  when  he 
explained  the  sale  to  him  and  he  manifested  no  disapprobation. 
Maull  sold  to  his  co-defendant,  McGroarty,  on  the  evening  of  the 
eleventh.  He  testifies  that  he  did  not  see  Hiemans  until  after  this 
sale,  and  did  not  receive  his  letter  until  the  evening  of  the  day  he 
sold  to  McGroarty,  and  did  not  understand  from  its  contents  that 
his  agent  had  actually  effected  a  sale.  However  the  truth  of  this 
matter  may  be,  he  never  received  from  his  agent  the  earnest  money 
of  the  plaintiff;  in  a  day  or  two,  took  the  check  he  received  from 
McGroarty  for  $50,  paid  by  him  as  earnest  money,  to  Hiemans  (who 
collected  it),  and  directed  conveyances  to  be  prepared  to  McGroarty, 
which  was  accordingly  done,  the  balance  of  the  purchase  money 
paid,  and  the  deeds  delivered  on  the  twenty-second  of  July.  In  the 
meantime  he  never,  by  any  act  or  word  of  his,  gave  the  plaintiff  to 
undersstand  for  a  moment  that  he  had  authorized  or  ratified  the 
Bale  made  by  Hiemans  to  him;  but  from  the  first  approach  to  him, 
made  by  the  plaintiff,  to  secure  a  performance  of  the  contract, 
steadily  refused  to  recognize,  ratify  or  confirm  the  same. 

Under  the  statute,  as  it  now  reads,  requiring  written  authority 
for  the  contract  the  agents  make,  there  can  be  no  question,  it 
would  seem,  that  there  is  no  such  ratification  here  as  could,  by  any 
process  of  reasoning,  bind  the  defendant  Maull  to  specifically  per- 
form the  contract  in  question,  which  his  agent  Hiemans  had  no 
written  authority  to  make. 

The  judgment  is  affirmed.     All  concur. 

Note — In  Adams  vs.  Power,  52  Miss.  828,  when  the  question  was  as  to  the 
ratification  of  a  contract  executed  by  an  agent,  one  Shannon,  and  unneces- 
sarily under  seal,  the  court  said:  '*  The  general  rule  of  the  common  law  is 
that  an  agent  cannot  bind  his  principal  by  a  sealed  instrument  unless  he  has 
been  appointed  by  a  writing  under  seal.  But  the  rule  seems  in  this  country 
to  have  been  so  far  relaxed  as  to  allow  a  subsequent  ratification  by  acts  of 
a  contract  under  seal  if  the  law  does  not  require  such  instruments  to  be 
sealed.  Worrall  vs.  Munn,  5  N.  Y.  229,  55  Am.  Dec.  330;  Lawrence  vs. 
Taylor,  5  Hill,  (N.  Y.)  113;  Randall  vs.  Van  Vechten,  19  Johns.  (N.  Y.)  60, 
10  Am.  Dec.  193;  Evans  vs.  Wells,  22  Wend.  (N.  Y.)  340;  Story  on  Ag.  g§ 
154,  160-162.  The  defeasance  contract  would  have  been  as  efTectual  with- 
out seal  as  with  it.  The  statute  of  frauds  does  not  require  such  agreements 
to  be  in  writing  under  seal.  The  acceptance  of  the  note,  and  the  appropria- 
tion of  it  with  knowledge  of  the  circumstances  and  agreement  with  which 


170  Oases  on  Agency.  [Book  I 

it  was  connected,  was  a  ratification  of  the  assumed  agency  of  Shannon." 
To  the  same  effect:  State  vs.  Spartanshurg,  etc.,  R.  R.  Co.,  8  S.  C.  129; 
Hammond  vs.  Hannin,  21  Mich,  874,  4  Am.  Rep.  490. 

But  in  Pollard  vs.  Oihbs,  55  Ga.  45,  cited  in  the  principal  case,  it  is  held, 
following  Eowe  vs.  Ware,  30  Ga.  278,  that  even  though  the  contract  is 
unnecessarily  under  seal,  still  the  ratification  must  be  sufficient  to  authorize 
the  contract  "  sealed  as  it  is." 


(11  Geat,  102,  71  Am.  Dec.  690.) 

McINTYKE  vs.   PAEK. 

CSupreme  Judicial  Court  of  Massachusetts,  September,  1858. J 

Action  of  contract.  Plaintiff  entered  into  an  agreement  with 
defendants,  D.  W.  Castle  and  D.  S.  Young,  whereby  he  agreed  to 
convey  to  them  certain  land  and  buildings  thereon;  they  to  pay 
him  seven  thousand  eight  hundred  and  tifty  dollars,  and  in  case 
either  party  made  default,  he  should  forfeit  five  hundred  dollars, 
and  pay  the  same  to  the  other  party.  Defendants  Castle  and 
Young  failed  to  pay,  and  refused  to  perform  their  part  of  the  con- 
tract. On  the  trial,  the  plaintiff  produced  the  agreement  to  which 
was  Castle's  name,  signed  by  himself,  and  also  the  names  of  Park 
and  Young,  signed  by  Castle.  Castle's  authority  to  sign  the  names 
of  Park  and  Young  did  not  appear,  and  defendant  objected  to  the 
introduction  of  the  instrument  as  evidence.  Plaintiff  then  offered 
evidence,  against  defendant's  objection,  that  defendant  was  informed 
of  Castle's  use  of  his  name;  that  he  consented  to  be  bound  by  the 
writing;  that  he  treated  it  as  a  valid  contract,  and  got  from 
plaintiff  an  extension  of  time  under  it.  Verdict  for  plaintiff,  with 
damages  fixed  at  three  hundred  and  seventy-six  dollars.  Defend- 
ant alleged  exceptions. 

S.  T.  Spaulding,  for  the  defendant. 
C.  Delano,  for  the  plaintiff. 

By  court,  Metcalf.  J.  We  express  no  opinion  on  the  question 
whether  the  sum  of  five  hundred  dollars,  mentioned  in  the  agree- 
ment upon  which  this  action  is  brought,  is  a  penalty  or  liquidated 
damages. 

That  point  was  ruled  in  defendant's  favor,  and  the  plaintiff  has 
not  excepted  to  the  ruling. 


Chap.  V]  McIntyee  vs.  Park.  171 

The  evidence  of  the  defendant's  ratification  or  adoption  of  the 
agreement  executed  in  his  name  was  rightly  admitted,  and  he,  by 
snch  ratification  or  adoption,  became  answerable  for  a  breach  of 
that  agreement:  Merrijield  vs.  Parritt,  11  Gush.  (Mass.)  590.  In 
that  case  the  agreement  was  not  tinder  seal;  and  the  defendant  con- 
tends that  a  sealed  instrument,  executed  without  previous  authority, 
can  be  ratified  only  by  an  instrument  under  seal.  However  this 
may  be  elsewhere,  by  the  law  of  Massachusetts  such  instrument  may 
be  ratified  by  parol:  Cady  vs.  Shepherd,  11  Pick.  (Mass.)  400,  (23 
Am.  Dec.  379);  Sioan  vs.  SUadman,  4  Met.  'Mass.)  548;  see  also 
1  Am.  Lead.  Cases,  4th  ed.  450;  Collyer  on  Part.  3d  Am.  ed.  sec. 
467;  Story  on  Agency,  5th  ed.  sees.  49,  51,  242,  and  notes;  McDonald 
vs.  Eggleston,  26  Vt.  154,  60  Am.  Dec.  303.  The  cases  in  which 
this  doctrine  has  been  adjudged  were  those  in  which  one  partner, 
without  the  previous  authority  of  his  copartners,  executed  a  deed 
in  the  name  of  the  firm.  But  we  do  not  perceive  any  reason  for 
confining  the  doctrine  to  that  class  of  cases. 

"We  cannot  see  that  the  jury  ought  to  have  been  instructed  to 
find  only  nominal  damages.  It  does  not  appear  that  all  the  evi- 
dence as  to  damages  is  set  forth  in  the  bill  of  exceptions.  The 
instructions  on  the  subject  seem  to  us  to  have  been  right;  and  if 
the  jury  assessed  larger  damages  than  the  evidence  legally  warranted, 
the  defendants  should  have  moved  for  a  new  trial  on  that  ground. 
We  must  suppose,  in  this  stage  of  the  case,  either  that  there  was 
evidence  of  damages  which  is  not  reported,  or  that  the  jury  judged 
from  the  nature  of  the  case  what  was  the  amount  of  damages  which 
the  plaintiff  had  sustained — as  they  always  do  in  those  actions  in 
which  general  damages  only  are  claimed  in  the  plaintiff's  declara- 
tion, and  in  which  the  law  has  prescribed  no  fixed  rule  of  damages. 

All  the  other  rulings  and  instructions  to  which  exceptions  have 
been  alleged  we  think  were  correct;  and  we  deem  it  unnecessary  to 
do  more  than  simply  to  afi^rm  them. 

Exception  overruled. 


172  Cases  02T  Agency.  [Book  1 

(67  OoiTNECTiouT,  42,  14  Am.  St.  Eep.  83.) 

SHONmGER  vs.    PEABODY. 

("Supreme  Court  of  Connecticut,  January,  1889.) 

Action  of  assumpsit,  brought  by  Shoninger  and  another  against 
Peabody,  to  recover  for  the  price  of  a  piano  sold.  The  facts 
appear  in  the  opinion.  There  was  a  judgment  for  the  plaintiffs, 
and  the  defendant  appealed. 

J.  O'Neil  and  C.  A.  Colley,  for  the  appellant. 

8.  W.  Kellogg  and  J.  P.  Kellogg,  for  the  appellees. 

LooMis,  J.  The  plaintiffs  have  been  for  many  years  dealers  in 
musical,  instruments  at  New  Haven,  with  a  branch  store  at  Water- 
bury  which,  from  1880  to  October,  1886,  was  under  the  sole  charge 
and  management  of  one  Henry  K.  Day,  the  general  agent  of  the 
plaintiffs.  Day  was  paid  a  regular  salary,  and  received,  in  addi- 
tion, a  commission  on  all  sales  made  by  him  for  the  plaintiffs. 
While  acting  as  such  agent  he  sold  from  the  store  in  Waterbury 
one  of  the  plaintiffs'  pianos  to  the  defendant  for  the.  agreed  price 
of  three  hundred  dollars,  which  was  agreed  to  be  paid  for  wholly 
by  certain  commissions  which  might  become  due  from  Day  to  the 
defendant  on  future  stock  transactions  between  the  defendant  and 
Day  on  his  private  account.  The  defendant  has  been  for  a  consider- 
able time  engaged  in  the  business  of  a  stock-broker,  and  as  such 
had  had  previous  dealings  with  Day.  The  plaintiffs  had  no  actual 
knowledge  of  the  sale  of  the  piano  until  after  Day  had  left  their 
employment.  He  had  reported  to  them  that  the  piano  was  rented 
to  the  defendant. 

But  the  finding  is  explicit  that  the  plaintiffs  were  informed  of 
the  terms  of  the  sale  after  Day  left  their  employ,  and  before  the 
bringing  of  this  suit.  The  defendant  earned  commissions  in  his 
stock  transactions  on  Day's  account  to  the  amount  of  8185,  which 
were  credited  by  Day  on  the  piano  account,  but  not  paid  over  to 
the  plaintiffs.  In  the  year  1886  the  defendant  paid  the  plaintiffs 
several  sums,  aggregating  seventy-five  dollars,  which  is  all  the 
plaintiffs  ever  received  towards  the  price  of  the  piano.  Day  was  a 
defaulter  in  his  dealings  with  the  plaintiffs  to  an  amount  exceed- 
ing five  thousand  dollars. 

The  manifest  wrong  and  injustice  perpetrated  upon  the  plaintiffs 


Chap.  V]  Shoningee  vs.  Peabody.  173 

by  the  defendant  and  Day  make  us  regret  that  the  principles  of 
law  applicable  to  the  remedy  chosen  by  the  plaintiffs  are  not 
flexible  enough  to  afford  relief.  But  the  greatest  good  to  the 
greatest  number  requires  adherence  to  sound  general  principles, 
even  though  in  a  given  case  a  party  may  fail  to  obtain  redress. 
The  whole  trouble  in  this  case  arises  from  a  mistake  as  to  the 
plaintiffs'  remedy. 

When  the  plaintiffs  were  informed  of  the  terms  of  the  contract 
made  by  their  agent  for  the  sale  of  the  piano  to  the  defendant, 
they  had  an  election  to  repudiate  the  arrangement,  and  by  tendering 
back  what  they  had  received  in  ignorance  of  the  terms  of  the  sale, 
and  demanding  the  piano,  they  could  have  recovered  it  by  an  action 
of  replevin  or  obtained  its  value  in  trover.  But,  knowing  the 
terms  of  the  sale,  they  elected  to  sue  in  assumpsit  on  the  contract  for 
the  agreed  price,  and  thereby  they  afiBrmed  the  contract,  and  ratified 
the  act  of  the  agent,  precisely  as  if  it  had  been  expressly  approved 
upon  being  reported  to  them  by  the  agent  or  the  defendant.  And 
in  contemplation  of  law,  a  subsequent  ratification  and  adoption  of 
an  act  has  relation  back  to  the  time  of  the  act,  and  is  tantamount 
to  a  prior  command:    1  Am.  Lead.  Cas.,  4th  ed.  592. 

The  argument  for  the  plaintiffs  (though  it  is  not  so  stated)  seems 
really  to  involve  the  fallacious  assumption  that  the  plaintiffs  could 
afiBrm  the  contract  in  part  and  repudiate  it  in  part;  that  is,  that 
the  contract  is  to  be  treated  as  good  for  the  agreed  price,  but  bad 
as  to  the  agreed  mode  of  payment.  But  the  law  requires  a  contract 
to  be  affirmed  or  repudiated  in  its  entirety.  tShepard  vs.  Palmer, 
6  Conn.  100;  Newell  vs.  Hurllurt,  2  Vt.  351.  See,  also,  the  cases 
hereinafter  cited. 

There  was  no  contract  at  all  relative  to  the  piano  except  the  one 
made  by  Day  as  their  agent;  and  when  the  plaintiffs,  knowing  the 
facts,  sued  on  that  contract,  they  affirmed  it  in  every  essential 
particular,  both  as  to  price  and  as  to  the  terms  of  paying  the  price. 

The  leading  case  on  this  subject  is  Smith  vs.  Ilodson,  4  Term 
Rep.  211,  where  it  was  held  that  if  a  bankrupt,  on  the  eve  of  his 
bankruptcy,  fraudulently  delivered  goods  to  one  of  his  creditors, 
the  assignees  may  disaffirm  the  contract,  and  recover  the  value  of 
the  goods  in  trover;  but  if  they  bring  assumpsit,  they  affirm  the 
contract  with  all  its  incidents,  so  that  a  creditor  may  even  set  off 
his  debt;  and  the  principle  established  in  that  case  has  ever  since 
been  considered  to  rest  upon  an  impregnable  foundation,  that  the 
existence  of  the  contract  could  not  be  affirmed  to  promote  the  pur- 


174  Cases  on  Aqeijcy.  [Book  I 

pose  of  a  recovery,  and  at  the  same  time  be  treated  as  a  nullity  in 
order  to  shut  out  the  opposite  party  from  a  defense  otherwise  open 
to  him. 

In  Butler  vs.  Galle,  1  Watts  &  S.  108,  the  trustees  in  a  domestic 
attachment,  which  is  a  proceeding  in  the  nature  of  a  commission 
of  bankruptcy,  sued  the  defendant  in  assumpsit  for  the  amount  of 
a  check,  which  had  been  transferred  to  him  by  the  party  against 
whom  the  attachment  issued  subsequently  to  its  date,  and  relied 
on  the  invalidity  of  the  transaction  as  ground  of  recovery.  But 
it  was  held  by  the  court  that,  whatever  the  result  might  have  been 
had  the  action  been  laid  in  tort,  the  necessary  result  of  laying  it  in 
contract  was  to  affirm  the  transaction  on  which  it  was  founded, 
and  entitle  the  defendant  to  show  that  he  had  received  the  check 
in  payment  of  a  debt. 

For  the  same  reason,  it  has  long  been  held  that  a  principal  who 
seeks  to  enforce  a  sale  made  by  his  agent  cannot  ordinarily  allege 
that  the  agent  exceeded  his  instructions  in  warranting  the  goods, 
because  he  must  accept  the  contract  as  a  whole  if  he  means  to  rely 
on  any  portion. 

The  general  concensus  of  judicial  opinion  in  the  United  States 
is  in  perfect  accord  with  the  authorities  cited  from  the  English 
courts.  We  will  select  a  few  only  of  the  numerous  cases  affirming 
the  principles  upon  which  we  base  our  opinion. 

One  of  the  most  recent  cases  is  that  of  Billings  vs.  Mason,  80 

Me.  496  {post, ),  decided  in  August,  1888.     The  case  is  stated 

by  Daxfoeth,  J.,  in  giving  the  opinion  of  the  court  as  follows: 
**  The  action  is  assumpsit  upon  an  account  annexed.  The  defend- 
ant admits  that  he  received  from  the  plaintiff  the  goods  charged, 
and  makes  no  question  as  to  the  prices.  This  makes  ix  prima  facie 
case  against  him;  and  though  technically  it  does  not  change  the 
burden  of  proof,  it  devolves  upon  him,  if  he  would  avoid  the 
responsibility,  to  give  some  reason  why.  The  explanation  offered 
by  the  defendant  is,  that  though  he  received  the  goods  from  the 
plaintiff,  he  received  them  by  virtue  of  an  express  agreement  with 
an  agent  or  traveling  salesman  of  the  plaintiff,  one  element  of 
which  was  that  certain  goods  of  a  like  kind,  which  the  defendant 
then  had,  should  be  taken  in  payment.  This  agreement  with  the 
agent  is  not  questioned,  but  the  answer  to  it  is  two-fold:  (1)  that 
the  agent  had  no  authority  to  make  such  a  contract;  and  (2)  that 
the  contract  under  which  the  action  is  sought  to  be  maintained  was 
made  directly  with  the  plaintiff,  though  in  some  degree  through 


Chap.  V]  Shoninqeb  ts.  Peabodt.  175 

the  instrumentality  of  the  agent.  Assuming,  under  the  first,  that 
the  agent  had  no  authority  to  make  the  contract  he  did, — and  the 
evidence  is  quite  conclusive  upon  that  point, — still  it  does  not  change 
the  conceded  fact  that  he  not  only  assumed  the  authority  to  do  so, 
but  did  actually  make  such  a  contract.  Waiving  for  the  moment 
the  second  point  raised,  this  was  the  only  contract  having  the 
assent  of  the  defendant, — the  contract  under  which  he  acted,  and 
by  virtue  of  which  he  obtained  the  goods.  It  is  quite  clear  that 
the  plaintiff  cannot  hold  him  upon  a  contract  he  did  not  make,  or 
repudiate  the  contract  in  part,  and  hold  the  remainder  valid. 
Brigham  vs.  Palmer,  3  Allen,  450.  Nor  can  he  be  holden  upon 
an  implied  contract,  for  that  is  excluded  by  the  express." 

In  Smith  vs.  Phimmer,  5  Whart.  89,  34  Am.  Dec.  630,  a  con- 
tract made  for  the  benefit  of  the  defendants  was  held  to  have  been 
ratified  by  their  giving  it  in  evidence  as  a  defense  in  a  suit  brought 
contrary  to  its  terms. 

In  Beichnan  vs.  Ooodell,  56  Iowa,  592,  an  agent  for  the  owner  of 
a  note  and  mortgage  took  new  notes  for  the  debt,  and  in  consider- 
ation of  their  being  signed  by  the  wife  of  the  maker,  who  was  not 
a  party  to  the  former  note,  agreed  (without  the  authority  of  his 
principal)  to  cancel  the  mortgage.  His  principal,  having  brought 
a  suit  and  taken  judgment  against  the  makers  of  the  new  notes, 
was  held  to  have  ratified  the  agreement,  so  that  he  could  not 
enforce  the  mortgage,  which  at  the  time  was  improperly  canceled. 

In  Peninsular  Bank  vs.  Hanmer,  14  Mich.  208,  a  contract  was 
entered  into  by  the  cashier  in  behalf  of  the  bank,  by  which  security 
was  given  by  a  debtor  on  long  time  to  a  creditor,  in  the  interest  and 
on  motion  and  arrangement  of  the  cashier,  who,  in  order  to  procure 
the  assent  of  the  creditor,  without  authority  from  the  bank,  made 
and  delivered  a  bond  of  indemnity  against  a  prior  mortgage  on  the 
property  covered  by  the  collateral  security.  The  bank  received 
the  benefit  of  the  transaction,  and  defended  the  creditor  against  a 
Buit  to  foreclose  a  prior  mortgage.  It  was  held  that,  having  appro- 
priated the  benefits,  the  bank  must  affirm  or  rescind  in  toto;  that 
it  could  not  disaffirm  as  to  those  parts  which  imposed  an  obligation, 
and  affirm  it  so  far  as  it  operated  to  its  advantage,  and  that  the 
entire  arrangement  was  ratified. 

In  WhitlocJc  vs.  Heard,  3  Rich.  88,  the  plaintiff  was  a  carriage- 
maker,  and  his  shop  was  under  the  management  of  W.,  as  his  fore- 
man. W.  owed  the  defendant  by  note,  and  made  and  delivered  to 
her  a  buggy  belonging  to  the  plaintiff,  in  exchange  for  the  note. 


176  Cases  on  Agbkot.  [  Book  I 

The  plaintiff,  on  hearing  of  this,  disapproved  of  the  arrangement, 
and  brought  his  action  for  the  price,  alleging  it  to  have  been  sold. 
It  was  held  that  he  could  not  recover;  that,  regarding  him  as  hav- 
ing adopted  the  contract,  he  would  then  be  only  entitled  to  the 
note;  regarding  him  as  having  repudiated  the  contract,  there  would 
then  be  no  sale  of  the  buggy,  and  that  his  remedy  was,  after 
demand,  to  bring  trover. 

In  Berkshire  Glass  Co.  vs.  Wolcott,  2  Allen,  227,  79  Am.  Dec. 
787,  an  agent  was  entrusted  with  chattels  for  a  certain  specified 
purpose;  he  wrongfully  sold  the  goods,  and  received  payment  in 
money.  The  principal  brought  an  action  of  assumpsit  against  the 
purchaser  for  the  price.  It  was  held  that  he  could  not  recover  in 
assumpsit,  the  purchaser  not  having  sold  the  property  and  received 
the  money  for  it,  but  that  the  plaintiff  might  have  recovered  in  an 
action  of  tort.  The  same  principle  is  recognized  in  Jones  vs.  Hoar, 
6  Pick.  285.  In  the  case  at  bar,  there  is  no  claim  that  the  defend- 
ant had  sold  the  piano. 

In  Butler  vs.  Hildreth,  5  Met.  49,  an  insolvent  conveyed  away 
his  property  in  fraud  of  his  creditors.  The  trustee  brought  a  suit 
against  the  purchaser  to  recover  the  value  of  the  property;  then 
he  discontinued  that  suit,  and  brought  an  action  to  set  aside  the 
sale  on  the  ground  of  fraud.  It  was  held  that,  having  brought  an 
action  ex  contractu,  the  sale  was  affirmed,  and  the  latter  action 
could  not  be  maintained. 

In  Marsh  vs.  Pier,  4  Rawle,  273,  26  Am.  Dec.  131,  the  defend- 
ant purchased  goods  from  A.,  as  agent  of  the  plaintiff,  who  brought 
an  action  and  recovered  judgment  for  the  price.  Afterwards  the 
plaintiff  disavowed  the  agency  and  brought  replevin  for  the  goods. 
It  was  held  that  the  record  of  the  former  judgment  was  conclusive 
as  an  affirmance  of  the  sale. 

A  vast  number  of  other  cases  establishing  the  same  principle 
might  bo  cited,  but  the  above  will  suffice.  No  conflicting  cases 
were  cited  by  the  plaintiffs,  unless  Steivart  vs.  Woodward,  50  Vt. 
78,  23  Am.  Kep.  488;  and  Squires  vs.  Barber,  37  Vt.  558,  are  to  bo 
so  regarded. 

In  the  first  of  these  cases,  an  agent  of  the  plaintiffs,  who  were 
merchant  tailors,  owed  the  defendant,  who  was  a  physician,  a 
private  debt  for  medical  services  for  himself  and  family,  and  being 
unable  to  pay  money,  persuaded  the  defendant  to  take  a  suit  of 
clothes  out  of  the  plaintiff's  shop  in  part  payment,  which  was  done. 
The  court  allowed  the  plaintiffs  to  recover  of  the  defendant  the 


Chap.  V]  Shoxin'Ger  ys.  Feabodt.  177 

price  of  the  suit  in  an  action  of  book-debt,  on  the  ground  that  the 
act  of  the  defendant  in  receiving  and  converting  the  goods  to  his 
own  use  raised  an  implied  promise  to  pay  for  them.  The  opinion  of 
the  court  is  very  brief,  and  contains  no  discussion  as  to  the  form  of 
remedy,  and  no  reference  to  the  authorities  generally.  As  to  the  form 
of  remedy,  it  is  manifestly  difficult  to  reconcile  the  case  with  some 
others  we  have  cited.  In  regard,  however,  to  the  question  whether 
the  suit  would  be  efFecfcual  as  a  ratification  of  their  agent's  act,  we 
suggest  this  distinction,  that  the  act  of  the  agent  in  paying  his 
private  debt  with  the  plaintiU's  goods  could  not,  perhaps,  be 
regarded  as  an  act  done  for  or  in  behalf  of  the  principal  at  all,  nor 
even  in  the  principars  name,  and  was  not  properly  a  contract  of 
sale  at  all,  so  that  there  was  no  express  contract  to  be  aifirmed  by 
the  bringing  of  the  suit,  and  nothing  to  prevent  the  raising  of  the 
implied  promise  except  the  fact  that  the  defendant  had  not  sold 
the  goods  and  received  money  thereon.  It  is  doubtedly  a  sound 
doctrine,  established  by  numerous  authorities,  that  to  make  a 
ratification  effectual  it  must  be  of  some  act  done  or  engagement 
made  as  agent  for  or  on  behalf  of  the  person  whom  it  is  alleged  to 
bind. 

The  other  case  cited  from  37  Vt.  553,  was  very  similar  in 
the  principles  that  apply.  An  agent  of  the  plaintiffs,  who  had 
authority  to  sell  their  goods,  became  insolvent,  and  owing  the 
defendant  a  private  debt,  undertook  to  pay  it  out  of  the  plaintiff's 
goods,  the  defendant  being  charged  with  knowledge  of  all  the  cir- 
cumstances at  the  time.  The  plaintiffs  sued  in  assumpsit,  and  the 
defendant,  instead  of  denying  the  plrintiff's  claim,  undertook 
merely  to  set  off  the  debt  against  their  claim,  which,  of  course, 
could  not  be  done. 

There  is  error  in  the  judgment  complained  of,  and  it  ia  reversed. 


(118  New  Yokk,  563.) 

HYATT  V3.  CLARK. 

CNew  York  Court  of  Appeals,  February,  1890. J 

Cross  actions  between  the  same  parties.     Clark  sought  specific 
performance  of  a  clause  in  a  lease  providing  for  its  renewal  and 
12 


178  Cases  on  Agei^ct.  [Book  I 

Hyatt  soTight  the  cancellation  of  the  lease  on  the  ground  that  it 
had  been  ezecnted  by  an  agent  in  excess  of  his  authority.  Mr. 
Lake  was  Mrs.  Hyatt's  agent,  holding  a  power  of  attorney  from 
her.  In  January,  18S0,  he  entered  into  negotiations  with  Mr.  Clark 
for  the  leasing  to  the  latter  for  a  long  period  of  certain  premises  in 
New  York  city,  belonging  to  Mrs.  Hyatt.  Clark  raised  some 
question  as  to  the  sufiBciency  of  Lake's  authority  under  the  power, 
which  gave  him  no  express  power  to  make  leases,  and  Clark  wrote 
to  Mrs.  Hyatt,  who  was  then  in  England,  concerning  the  matter. 
While  waiting  a  reply,  the  lease  was  executed  and  delivered  to 
Clark  who  accepted  it  conditionally  awaiting  the  reply  from  Mrs. 
Hyatt.  Mrs.  Hyatt  sent  a  cable  message  to  Lake  cancelling  his 
authority  and  directing  him  to  sign  no  lease.  Lake  showed  this 
message  to  Clark  who  refused  to  permit  the  lease  to  be  cancelled, 
saying  he  would  take  the  risk,  and  went  into  possession.  Lake 
informed  Mrs.  Hyatt  that  the  lease  had  been  executed  before  the 
receipt  of  her  message  and  could  not  be  cancelled  or  avoided.  He 
did  not  inform  her  that  it  had  been  conditionally  accepted  until 
November  10,  1884.  In  the  meantime  she  had  accepted  the  rent 
provided  for  by  the  lease.  Judgments  were  rendered  against  her 
and  she  appealed. 

William  Man,  for  appellant. 

Joseph  H.  Choate  and  Sanger  &  Davis,  for  respondent. 

Vanis",  J.  We  do  not  deem  it  important  to  decide  whether  the 
power  of  attorney  authorized  Mr.  Lake  to  execute  the  lease  in 
question  or  not,  because,  in  either  event,  the  same  result  must  fol- 
low, under  the  circumstances  of  this  case. 

If,  on  the  one  hand,  he  acted  without  adequate  authority  in 
giving  the  lease,  both  the  lessor  and  lessee  knew  it,  for  both  knew 
the  facts  and  both  are  presumed  to  have  known  the  law,  and  the 
former,  at  least,  had  an  absolute  right  to  disaffirm  the  contract. 
As  she  knew  the  contents  of  the  power  of  attorney  and  the  lease, 
and  that  the  latter  was  executed  by  her  agent  in  her  name,  it  was 
not  necessary  that  she  should  be  informed  of  the  legal  effect  of 
those  facts.  KelJey  vs.  Kewhnryport  &  Ameshury  Horse  11.  It.  Co., 
141  Mass.  49G;  Phosphate  Lime  Co.  vs.  Green,  L.  R.  (7  C.  P.)  43; 
Mechem  on  Agency,  sec.  129. 

Whether  influenced  by  caprice  or  reason,  if  she  had  promptly 
notified  the  lessee  that  she  repudiated  the  lease  because  her  agent 
had  no  power  to  execute  it,  their  rights  would  have  been  forthwith 


Chap.  V]  Hyatt  ys.  Clark.  179 

terminated  and  they  would  have  had  no  lease.  The  right  to  dis- 
BflBrm  on  one  tcnnlile  ground  would,  if  acted  upon,  have  been  as 
effective  as  the  right  to  disafTirm  upon  all  possible  gronnds.  Under 
the  condition  supposed,  the  law  gave  her  the  same  right  to  disaffirm 
without  any  agreement  to  that  effect,  that  she  would  have  had  if 
her  agent,  being  duly  authorized  to  lease,  had  expressly  provided, 
in  the  written  instrument,  that  she  could  disaffirm  if  she  chose  to 
do  so.  Therefore,  by  accepting  the  rent  of  the  demised  premises 
for  more  than  four  years  without  protest  or  objection,  she  ratified 
the  lease  as  comj^letely  as  she  could  have  if  she  had  known  of  twa 
grounds  upon  which  to  disaffirm,  instead  of  only  one.  Two 
grounds  could  not  make  the  right  any  more  effectual  than  one.  If 
she  had  the  right  at  all,  the  number  of  grounds  upon  which  she 
could  justify  its  exercise  is  unimportant.  Her  ratification  was 
none  the  less  complete,  because,  being  unwilling  to  run  the  risk  of 
a  doubtful  question  of  law,  she  did  not  at  once  act  as  she  would 
have  acted  if  she  had  known  all  of  the  facts.  As  said  by  the  court 
in  Adams  vs.  Mills,  60  N.  Y.  539,  "the  law  holds  that  she  was 
bound  to  know  what  authority  her  agent  actually  had."  Having 
executed  the  power  of  attorney,  she  is  conclusively  presumed  to 
have  known  what  it  meant  and  the  extent  of  the  authority  that  it 
conferred.     (Best  on  Evidence,  123;  Whart.  on  Evi.  §  1241.) 

If  the  lease  was  ultra  vires,  therefore,  by  ratifying  it,  she  in  legal 
effect  executed  and  delivered  it  herself,  and  whatever  was  said 
between  Lake  and  Clark,  became  immaterial.  Even  if  they  agreed 
that  she  should  have  the  right  to  disapprove,  it  is  of  no  importance, 
because  she  had  that  right  without  any  such  agreement.  If  her 
agent  had  no  power  to  execute  the  lease,  the  delivery  thereof, 
whether  absolute  or  conditional,  could  not  affect  her  rights.  If 
she  was  dissatisfied  with  it,  she  could  have  been  relieved  of  all 
responsibility  thereunder  by  promptly  saying  to  the  lessees:  "This 
contract  was  not  authorized  by  the  agency  I  created,  and  I  refuse 
to  be  bound  by  it."  After  that  there  would  have  been  no  lease. 
If  the  action  of  her  agent  was  unauthorized,  it  did  not  bind  her, 
until  by  some  act  of  ratification  she  bound  herself.  By  ratifying,  she 
waived  any  right  to  disaffirm  upon  any  ground,  known  or  unknown, 
because  the  lease  did  not  exist,  as  a  lease,  by  the  act  of  her  agent, 
but  by  her  own  act  of  confirmation. 

If,  on  the  other  hand,  Mr.  Lake  was  duly  authorized  to  give  the 
lease,  certain  presumptions  of  controlling  importance  spring  from 


180  Oases  ojf  Agency.  [Book  I 

that  fact.  He  is  presumed  to  have  disclosed  to  his  principal, 
within  a  reasonable  time,  all  of  the  material  facts  that  came  to  his 
knowledge  while  acting  within  the  scope  of  his  authority. 

It  is  laid  down  in  Story  on  Agency  (sec.  140),  that  "  notice  of 
facts  to  an  agent  is  constructive  notice  thereof  to  the  principal 
himself,  where  it  arises  from  or  is  at  the  time  connected  with  the 
subject  matter  of  his  agency,  for,  upon  general  principles  of  public 
policy,  it  is  presumed  that  the  agent  has  communicated  such  facts 
to  the  principal,  and  if  he  has  not,  still  the  principal  having 
intrusted  the  agent  with  the  particular  business,  the  other  party 
has  a  right  to  deem  his  acts  and  knowledge  obligatory  upon  the 
principal.*' 

In  other  words,  she  was  chargeable  with  all  the  knowledge  that 
her  agent  had  in  the  transaction  of  the  business  he  had  in  charge. 
{Ingalls  vs.  Morgan,  10  N.  Y.  178;  Adams  vs.  Mills,  supra;  Myers 
vs.  Mutual  Life  Ins.  Co.,  99  N.  Y.  1,  11;  Bank  of  U.  S.  vs.  Davis, 
2  Hill,  451;  Biggins  vs.  Armstrong,  9  Col.  38.) 

It  was  his  duty  to  keep  her  informed  of  his  acts  and  to  give  her 
timely  notice  of  all  facts  and  circumstances  which  would  have 
enabled  her  to  take  any  step  that  she  deemed  essential  to  her 
interests. 

She  does  not  question  the  good  faith  of  Mr.  Lake,  and  there  is 
no  proof  of  fraudulent  collusion  between  him  and  Mr.  Clark,  who, 
while  under  no  obligation  to  inform  Mrs.  Hyatt  of  the  facts,  had 
the  right  to  assume  that  her  agent  had  done  so.  {Ingalls  vs. 
Morgan,  supra;  Meelian  vs.  Forrester,  52  N.  Y.  277;  Scott  vs. 
Middleton,  U.  &  W.  O.  R.  R.  Co.,  86  Id.  200,  ante  p. .) 

It  was  her  duty  to  protect  her  interests  by  selecting  an  agent  of 
adequate  judgment,  experience  and  integrity,  and  if  she  failed  to 
do  so,  she  must  bear  the  loss  resulting  from  his  inexperience,  negli- 
gence or  mistaken  zeal.  After  the  lapse  of  sufficient  time,  there- 
fore, she  is  presumed  to  have  acted,  with  knowledge  of  all  the  acts 
of  her  agent,  in  the  line  of  his  agency. 

By  accepting  and  retaining  the  rent,  which  was  the  fruit  of  her 
agent's  act,  for  nearly  five  years  without  objection,  she  is  presumed 
to  have  ratified  that  act.  {Hoyt  vs.  Thompson,  19  N.  Y.  207; 
Alexander  vs.  Jones,  64  Iowa,  207;  Heyn  vs.  O'llngen,  60  Mich.  150, 

post  p. ;  2  Greenl.  on  Ev.  §§  66,  67.)     Without  expressing  any 

dissatisfaction  to  the  lessees,  she  received  eighteen  quarterly  pay- 
ments of  rent  before  electing  to  avoid  the  lease.     She  made  no 


Chap.  V  ]  Hyatt  vs.  Claek.  181 

offer  to  return  any  part  of  the  rent  so  paid,  althongh  she  tendered 
back  the  amount  deposited  to  her  credit  for  the  nineteenth  quarter 
at  the  time  that  she  demanded  possession  of  the  premises. 

Independent  of  what  she  is  presumed  to  have  known  through  the 
information  of  her  agent,  she  in  fact  knew  the  terms  of  the  lease 
and  that  it  was  executed  by  Mr.  Lake  in  her  name. 

Upon  her  arrival  in  this  country  in  September,  1880,  she  visited 
the  premises  and  saw  the  additions  and  improvements  that  the 
tenants  were  making  thereto,  and  at  that  time  as  well  as  subse- 
quently, rent  was  paid  to  her  in  person.  Apparently  she  had  all  the 
knowledge  that  she  cared  to  have,  for  she  made  no  inquiry  of  her 
agent  until  about  six  months  previous  to  the  expiration  of  the  first 
term  of  five  years,  and  not  until  after  the  lessees  had  given  notice 
of  their  election  to  continue  the  lease  for  a  second  term.  Thinking 
that  the  rent  was  low,  she  then  tried  to  find  out  something  from 
her  agent  that  would  enable  her  to  avoid  the  lease  and  as  a  result 
of  her  efforts  in  this  direction,  ascertained  the  fact  upon  which  she 
based  her  right  to  succeed  in  this  litigation.  But  it  was  then  too 
late  for  her  to  disaffirm,  because  her  long  silence  and  many  acts  of 
ratification  had  been  relied  upon  by  the  tenants,  who  had  expended  a 
large  sum  of  money  in  making  permanent  improvements  on  the 
property.  Having  received  the  benefits  of  the  contract,  she  could 
not,  after  years  of  acquiescence,  suddenly  invoke  the  aid  of  the 
courts  to  relieve  her  of  any  further  obligation,  because  she  had  but 
recently  discovered  a  fact  that  she  should  have  ascertained,  and 
which  the  law  presumes  that  she  did  ascertain,  long  before.  (1  Am. 
&  Eug.  Encyc.  of  Law,  429.) 

We  think  that  after  ample  opportunity  for  election  and  action 
Bhe  ratified  the  lease  and  that  her  ratification  was  irrrevocable. 

In  each  action  the  order  appealed  from  should  be  affirmed  and 
judgment  directed  upon  the  stipulation  in  favor  of  the  respondent, 
with  costs  of  apjjeal  to  this  court  in  one  action  only. 

Note. — In  Kelley  vs.  Newburyport  Horse  Railroad,  141  Mass.  496,  it  is 
said :  "  The  second  request  sought  to  incorporate  into  the  doctrine  of 
ratification  a  new  element,  namely,  that  in  order  to  make  a  valid  ratifica- 
tion, the  principal  must  have  known,  not  only  all  the  facts,  but  also  the 
legal  effect  of  the  facts,  and  then,  with  a  full  knowledge  both  of  the  law 
and  facts,  have  ratified  the  contracts  by  some  independent  and  substantive 
act.  This  request  was  properly  refused.  It  is  sufficient  if  a  ratification  is 
made  with  a  full  knowledge  of  all  the  material  facts.  Indeed,  a  rule 
somewhat  less  stringent  than  this  may  properly  be  laid  down,  when  one 
purposely  shuts  his  eyes  to  means  of  information  within  his  own  possession 


182  Cases  ox  Agency.  [Book  I 

and  control,  and  ratifies  an  act  deliberately,  having  all  the  knowledge  in 
respect  to  it  which  he  cares  to  have.  Combs  vs.  Scott,  12  Allen,  (Mass.)  493, 
497 ;  Phosphate  of  lAme  Co.  vs.  Green,  L.  R.  7,  C.  P.  43,  57." 


(4  Ketes,  469.) 

HAZARD  vs.  SPEARS. 

^New  York  Court  of  Appeals,  September,  1868, J 

Plaintiffs  were  factors  in  the  city  of  Buffalo.  Defendants,  who 
lived  in  Indiana,  sent  a  large  quantity  of  hams  to  plaintiffs  to  be 
sold  at  not  less  than  seven  and  three-fourths  cents  per  pound. 
Plaintiffs  advanced  to  defendants,  on  the  hams,  $5,025,  on  April 
2,  1861,  the  day  of  their  receipt.  On  the  2Gth  of  April,  plaintiffs 
made  a  contract  for  the  sale  of  the  hams  to  one  Perry  of  New 
York  city,  at  the  price  fixed  and  shipped  him  one  car  load,  being 
about  one-third,  against  which  they  drew  and  received  $1,S00. 
The  remainder  were  shipped  soon  after,  but  Perry  failed  about  the 
time  he  received  them.  The  sale  to  Perry  was  made  through 
his  agent,  Howe,  who  drew  drafts  on  Perry  for  the  price.  Plaint- 
iffs hurried  to  New  York  and  induced  Perry  to  give  up  these 
hams  upon  their  surrendering  the  drafts.  They  then  tried  to  sell 
them  in  New  York,  but  without  success,  and  they  therefore  deliv- 
ered them  to  Perdue  &  Ward,  who  were  acting  as  factors  for 
defendants,  to  be  disposed  of  to  the  best  advantage.  They  were 
subsequently  sold  at  a  loss.  Plaintiffs  wrote  to  defendants  fully 
concerning  the  affair  and  received  several  letters  from  them,  none 
of  which  expressed  any  dissatisfaction  with  plaintiffs'  conduct. 
In  June  plaintiffs  had  a  personal  interview  with  defendant  Spears, 
who  then  imputed  no  blame  to  them.  This  action  was  to  recover 
the  balance  of  plaintiffs'  advances  to  defendants.  The  defense  was 
that  plaintiffs  must  account  for  the  deficiency  caused  by  the  sale  at 
less  than  the  price  fixed.  Plaintiffs  recovered  and  defendants 
appealed. 

Benjamin  H.    Williams,  for  appellants. 

John  Oanson,  for  respondents. 

Hunt,  0.  J.  The  sale  of  the  hams  in  New  York,  at  a  lower 
price  than  that  fixed  by  the  defendants,  and  obtained  by  the  plaint- 


Chap.  V]  Hazard  vs.  Speaes.  183 

iffs  in  Buffalo,  gives  rise  to  the  present  controversy.  The  plaintifEa 
were  limited  in  price  by  the  order  of  the  defendants.  They  were 
expressly  directed  not  to  sell  them  for  less  than  seven  and  three- 
fourths  cents  per  pound.  The  sale  made  in  Buffalo  was  at  that 
price,  but  the  purchaser  failed  to  pay,  and  the  sale  was  rescinded. 
The  expenses  of  the  property  to  New  York,  and  the  sale  there, 
together  with  the  fall  in  price,  produced  the  loss  for  which  the 
amount  of  the  verdict  was  given. 

Immediately  upon  his  return  from  New  York,  Mr.  Hazard,  one 
of  the  plaintiffs,  wrote  to  the  defendants,  giving  a  full  account  of 
the  transaction;  and  informed  them  that  the  hams  had  been  left  with 
Purdue  &  "Ward,  to  dispose  of  to  the  best  advantage.  In  the  sev- 
eral letters,  the  defendants  acknowledge  the  receipt  of  this  infor- 
mation, and  made  no  claim  that  they  did  not  approve  of  the  entire 
proceeding.  The  judge,  at  the  trial,  decided  that  these  letters  did 
not  constitute  a  ratification  of  the  transaction.  The  case  does  not 
furnish  the  ground  of  this  decision.  I  presume  it  was  from  the 
fact  that  it  is  assumed  in  each  of  the  letters,  that  the  $1,800  paid 
was  upon  the  purchase  of  the  entire  quantity  of  hams,  and  would 
go  to  reduce  the  loss  that  would  arise  from  the  entire  sale.  In 
truth,  this  sum  was  received  in  payment  of  a  specific  portion  of 
the  hams,  one  car-load,  and  would  mitigate  the  loss  upon  that  por- 
tion only,  leaving  the  entire  loss  upon  the  remaining  portion 
unprovided  for.  This  would  produce  a  great  difference  in  the 
general  result,  and  was  an  important  fact  in  the  case.  The  defend- 
ants' ratification,  assumed  from  their  failure  to  object,  being  based 
upon  an  erroneous  understanding  of  the  facts,  could  not  bind  them. 
I  think  the  ratification  that  might  be  supposed  to  arise  from  this 
view  of  the  case,  must  be  abandoned. 

The  question  then  arises,  did  the  conversation  in  June,  1861, 
between  the  defendant  Spears  and  the  plaintiff  Hazard,  furnish 
evidence  on  which  the  jury  are  at  liberty  to  find  a  ratification? 
By  the  letters  already  referred  to,  the  defendants  had  been  informed 
of  the  entire  transaction,  with  the  erroneous  understanding  on 
their  part  as  to  the  11,800  already  mentioned.  They  had  been 
distinctly  informed  that  the  property  was  left  with  Purdue  &  "Ward 
for  sale,  and  without  limit  as  to  price.  In  the  conversation  now 
referred  to,  all  the  transaction  is  again  rehearsed  to  Mr.  Spears, 
the  understanding  as  to  the  $1,800  is  now  corrected,  and  he  is 
informed  that  the  property  is  left  with  the  New  York  house  for 
Bale,   without  limit.     As   testified  by  Mr.  Hazard,  he  made  no 


184  Cases  oit  Agency.  [Book  I 

objection  to  the  transaction;  impnted  no  blame  to  the  plaintiffs, 
and  expressed  his  regret  at  the  probable  loss.  Mr.  Spears,  himself, 
testifies  that  he  did  not  feel  it  his  duty  to  be  frank  with  the  plaint- 
iff, or  to  tell  him  that  he  would  be  held  liable  for  the  sale  of  the 
hams. 

Under  the  circumstances  stated,  the  title  to  the  property  thus  in 
the  hands  of  Purdue  &  Ward,  was  in  the  defendants.  If  a  change 
in  the  market  had  occurred,  by  which  the  price  had  advanced,  the 
benefit  would  have  accrued  to  the  defendants,  and  not  to  the 
plaintiffs.  The  sale  to  Perry  was  made  by  the  plaintiffs,  as  the 
agents  of  the  defendants,  and  upon  his  failure  to  perform,  as  such 
agents,  they  resumed  the  possession  of  the  property.  They,  as 
such  agents,  also  left  it  v/ith  Purdue  &  Ward  for  sale,  without 
limit  as  to  price.  All  this  was  communicated  to  Spears  in  person. 
If  he  wished  to  repudiate  what  had  taken  place,  and  to  counter- 
mand the  directions  for  sale,  given  in  behalf  of  his  firm,  and  to 
hold  the  plaintiffs  to  the  first  instructions,  it  was  his  duty  to  have 
done  it  promptly.  It  should  have  been  done  on  the  spot,  or 
certainly  within  a  few  days.  In  fact,  there  was  no  renunciation  or 
countermand  until  the  5th  of  September  thereafter,  although  a 
doubt  on  the  subject  of  their  liability  to  bear  the  loss  was  intimated 
in  a  letter  of  the  8th  of  August. 

In  Fri?ice  vs.  ClarTc,  (1  Bar.  &  Or.  185,  8  Eng.  Com,  Law,  80), 
the  plaintiff  had  shipped,  by  the  defendant,  certain  goods  to  the 
East  Indies  for  sale,  with  directions  to  invest  the  proceeds  in 
specified  articles.  The  defendant  invested  the  amount  in  Benares 
sugar,  which  was  not  one  of  the  specified  articles,  and  advised  the 
plaintiff  of  the  purchase  by  a  letter,  received  by  him  on  the  29th 
of  May.  The  plaintiff  made  no  objection  until  the  7th  of  August, 
when  he  notified  the  defendant's  agent  that  he  disowned  the  pur- 
chase. The  jury  held,  that  by  his  delay  he  had  assented  to  the 
acts  of  the  agent,  and  the  court  of  King's  Bench  afiSrmed  their 
verdict. 

Bailey,  J.,  says:  "The  principal  has  no  right  to  pause  and 
wait  the  fluctuation  of  the  market,  in  order  to  ascertain  whether 
the  purchase  is  likely  to  be  beneficial.  He  is  bound,  if  he  dissents, 
to  notify  hia  determination  within  a  reasonable  time." 

HoLKOYD,  J.,  says:  '^I  think  the  jury  might  fairly  infer,  from 
the  facts  of  the  case,  that  the  plaintiff  did  once  assent  to  take  the 
cargo  on  his  own  account,  or  that  he  meant,  at  least,  to  take  the 
chance  of  the  market." 


Chap.  V]  Hazard  vs.  Spears.  185 

It  was  objected,  in  that  case,  that  the  defendant  had  no  agent  to 
whom  notice  could  be  given,  and  that  he  could  receive  no  benefit 
from  the  notice.  The  court  held,  nevertheless,  that  an  agent 
might  have  been  found  by  inquiry,  and  that  the  verdict  was 
justified. 

The  defendants  insist  that  this  principle  does  not  affect  this  case, 
because,  they  say,  that  Howe  was  liable  on  the  drafts  given  up  to 
Perry;  that  he  was  solvent,  and  that  Spears  was  not  advised  of  this 
state  of  things  by  Hazard  in  the  June  conversation.  There  are 
two  answers  to  this  objection.  It  does  not  appear  that  Howe  was 
personally  liable  on  the  drafts  drawn  on  the  produce  shipped. 
It  appears,  very  distictly,  that  he  was  acting  in  transaction 
of  the  purchase,  as  the  agent  of  Perry,  and  thus  without 
interest.  Whether  the  drafts  drawn  by  him  upon  Perry  were  drawn 
as  agent,  or  whether  he  voluntarily  made  himself  liable  upon  them, 
is  not  proved,  and,  I  think,  cannot  be  assumed.  Another,  and 
quite  a  satisfactory  answer  is  this,  that  no  such  point  was  raised  on 
the  trial.  If  the  defendant  claimed  that  the  conversation  and  the 
delay  to  repudiate,  did  not  furnish  evidence  of  assent,  because 
Spears  was  not  informed  of  the  fact  that  Howe  was  liable  on  the 
drafts,  and  was  solvent;  he  should  have  called  attention  on  the  trial, 
to  the  precise  point  of  which  he  complained.  It  was  plainly  stated 
that  the  drafts,  whatever  they  were,  were  given  up  to  Perry  as  a 
means  of  obtaining  the  return  of  the  property.  This,  the  defend- 
ant Spears  certainly  knew,  and  if  he  had  not  been  informed  of  the 
other  alleged  facts,  and  had,  on  the  trial,  placed  himself  on  that 
gi'ound,  the  plaintiffs  would  then  have  had  the  opportunity  of 
showing  how  the  facts  were,  and  what  was  the  statement  of  them 
to  Spears.  To  allow  it  now  to  be  urged,  when  it  was  omitted  at  the 
proper  time,  would  be  quite  unjust.  The  point  is  of  frequent 
occurrence,  and  we  rule  upon  it  at  nearly  every  term. 

In  the  same  manner  the  defendants  object,  that  Spears  was  not 
informed  by  Hazard  that  the  sale  was  in  fact  to  Perry  and  not  to 
Howe.  If  this  fact  is  of  importance,  the  answer  to  the  objection 
is  the  same  as  that  given  to  the  preceding  one,  that  attention  was 
not  called  to  it  on  the  trial. 

The  defendants  also  insist  that  the  judge  erred  in  refusing  to 
charge,  that,  if,  in  the  conversation  referred  to.  Hazard  did  not 
entertain  the  idea  of  procuring  a  ratification,  and  Spears  did  not 
intend  to  ratify  the  plaintiffs'  acts,  there  was  no  ratification.  If 
Hazard's  testimony  is  to  be  relied  upon, — and  it  was  believed  by  the 


186  Cases  on'  Agency.  [Book  I 

jury, — he  had  acted,  as  he  supposed,  faithfnlly  and  honestly  in  the 

discharge  of  his  duty  as  the  defendants*  agent,  in  making  the  sale, 

in  recapturing  the  property,  and  in  directing  its  resale  by  Purdue  & 

"Ward,  at  the  best  price  that  could  be  obtained.      Upon  the  first 

opportunity  he  communicates  all  the  facts  orally  to  Mr.  Spears. 

The  question  then  is,  what  is  the  legal  effect  of  all  this,  with  the 

answers  of  Spears  in  connection?     If  both  Hazard  and  S2:)ears  had 

certainly  thought  that  the  transaction  was  right  in  itself  and  could 

not  be  disturbed  or  repudiated,  and  that  no  ratification  could 

improve  it,  and  therefore  had  no  intention  on  the  subject,  would 

that  have  altered  the  legal  effect  of  what  they  said  and  did?     Or 

if  Spears  was  satisfied  that  he  had  an  advantage  of  Hazard,  and 

meant  to  stand  upon  his  strict  rights,  and  at  some  convenient  time 

to  assert  them,  and  yet,  upon  a  full  and  frank  statement  of  all  the 

facts,  made  no  visible  or  audible  repudiation  of  the  transaction, 

would  he  not  have  been  concluded  by  his  silence?     The  case  of 

Prince  vs.  Clark,  is  clear  to  the  point  that  he  would  be.     The  law 

passes  its  judgment  upon,  and  gives  legal  effect  to,  what  is  said 

and  done.     Intentions,  except  as  they  are  manifested  by  the  acts 

and  statements  of  the  parties,  are  of  no  avail. 

Affirmed, 


(  60  Mich.  150.) 

HEYN  vs.    O'HAGEN. 

f Supreme  Court  of  Michigan,  January,  1886.) 

Assumpsit,  to  recover  for  goods  sold  and  delivered.  In  August, 
188-4,  a  shoemaker,  living  in  Marquette,  who  carried  on  business 
in  a  shop  in  which  defendant  had  formerly  carried  on  business, 
bought  goods  of  plaintiff,  who  lived  at  Ishpeming,  asserting  that 
he  was  in  defendant's  employment  and  was  purchasing  for  him. 
He  afterwards  procured  other  goods  in  the  same  way.  He  had  no 
authority  to  act  for  defendant,  and  defendant  received  none  of  the 
goods,  though  they  were  sent,  in  each  case,  by  express  to  his 
address.  An  invoice  of  each  purchase  was  also  sent  to  defendant. 
The  other  facts  appear  in  the  opinion.  The  plaintiff  recovered, 
and  defendant  brought  error. 


Chap.  V  ]  Heyn  vs.  CHagbn.  187 

F.  0.  Clarh,  for  appellant. 
Eayden  <&  Young,  for  plaintiff. 

Champlin,  J.  (after  stating  the  facts).  The  principle  is  well 
established,  "  That  if  a  man  either  by  word  or  by  conduct  has 
intimated  that  he  consents  to  an  act  which  has  been  done,  and 
that  he  will  offer  no  opposition  to  it,  although  it  could  not  lawfully 
have  been  done  without  his  consent,  and  he  thereby  induces  others 
to  do  that  from  which  they  otherwise  might  have  abstained,  he 
cannot  question  the  legality  of  the  act  he  had  so  sanctioned,  to  the 
prejudice  of  those  who  have  so  given  faith  to  his  words,  or  to  the 
fair  inference  to  be  drawn  from  his  conduct."  Cairncross  vs. 
Lorimer,  7  Jur.  (N.  S.)  149;  Truesdail  vs.  Ward,  24  Mich.  117, 
134,  and  cases  cited  on  page  135. 

But  there  can  be  no  estoppel  unless  the  plaintiff  was  induced  to 
take  some  action  in  reliance  upon  the  statement  or  conduct  of  the 
defendant  which  otherwise  he  would  not  have  taken,  and  which 
operated  to  his  prejudice.  **  Expenditures  in  litigation  may  as 
reasonably  constitute  the  basis  of  an  estoppel  as  any  other  expendi- 
tures.*'   Meister  vs.  Birney,  24  Mich.  435. 

The  finding  of  the  facts  show  that  the  plaintiff,  upon  selling  the 
first  bill,  took  the  precaution  to  mail  the  invoice  directly  to  defend- 
ant, and  to  send  the  goods  by  express  directed  to  him.  This 
invoice  was  received  through  the  mail  in  due  course,  and  within 
three  or  four  days  after  its  date;  and  defendant  suspected  immedi- 
ately that  this  shoemaker,  who  was  doing  business  in  the  shop  for- 
merly occupied  by  him,  had  ordered  the  goods  in  his  name,  and 
two  or  three  days  thereafter  went  to  this  person  and  asked  him 
about  it,  and  found  his  suspicion  true;  that  is,  that  he  had  ordered 
the  goods  in  his  name,  and  also  that  this  person  had  obtained  the 
goods  which  had  been  shipped  to  him.  Notwithstanding  he  had 
now  become  fully  informed  of  the  fact  that  this  shoemaker  had 
represented  himself  to  the  plaintiff  to  be  the  agent  of  defendant, 
and  had  ordered  the  goods  for  him  or  in  his  name,  and  knew  that 
the  goods  were  invoiced  and  consigned  to  him,  yet  he  did  nothing 
and  said  nothing  to  repudiate  the  transaction,  or  to  inform  the 
plaintiff  that  he  had  not  received  the  goods,  and  had  not  made  the 
purchase. 

The  fact  further  appears  that  defendant  had  been  engaged  in 
the  shoemaking  business  at  Marquette,  and  at  some  time  previous 
had  purchased,  in  person,  like  goods  of  plaintiff.     When  plaintiff 


188  Cases  on  Agency.  [Book  I 

called  upon  defendant  for  pay,  lie  suggested  that  they  botli  should 
go  together  to  the  shop  of  the  man  who  had  ordered  the  goods. 
Both  invoices  were  found  at  the  shop,  and  the  man  made  payment 
of  $21,  which  was  then  indorsed  upon  the  first  invoice,  and 
defendant  promised  the  plaintiff  that  he  would  see  that  he  got  the 
balance  of  the  money. 

Now  it  cannot  be  presumed  that  what  occurred  in  the  shop  at 
that  time  between  the  parties  had  no  influence  upon  the  conduct 
of  the  plaintiff.  Had  defendant  repudiated  the  transaction  and 
refused  to  pay  for  the  goods,  the  plaintiff  might  have  immediately 
proceeded  to  obtain  possession  of  them,  and  to  take  such  other 
remedy  as  the  law  afforded,  to  secure  his  rights.  Defendant's 
promise  of  payment  estopped  him  from  afterwards  asserting  that 
he  was  not  bound  by  it.  The  plaintiff  relied  upon  it,  and  has 
instituted  this  suit  to  enforce  it.  Under  the  authority  of  Meister 
vs.  Birjiey,  he  should  be  entitled  to  recover.  But  he  need  not  rely 
alone  upon  the  doctrine  of  estoppel.  Under  the  facts  found,  the 
question  is  clear  to  me  that  the  defendant  has  ratified  the  act  of  the 
shoemaker  in  ordering  the  goods  in  the  name  of  the  defendant. 
**  To  ratify  is  to  give  sanction  and  validity  to  something  done  with- 
out authority  by  one  individual  on  behalf  of  another:"  Evans,  Ag. 
48.  Eatification  may  be  express  or  implied.  When  there  is  no 
express  ratification,  the  facts  and  circumstances  from  which  a 
ratification  may  be  inferred  must  be  such  as  are  inconsistent  with 
a  different  intention.  Here,  the  ratification,  if  any  exists,  must 
be  inferred  from  the  silence  of  defendant,  and  his  neglect  to  inform 
the  plaintiff  that  he  had  not  authorized  the  shoemaker  to  purchase 
goods  on  his  credit,  or  to  order  them  in  his  name,  after  he  was 
fully  informed  of  the  facts. 

In  considering  whether  the  facts  and  circumstances  of  a  particu- 
lar case  are  sufficient  evidence  of  a  ratification,  the  distinction  has 
been  made  between  the  unauthorized  act  of  an  agent,  where  the 
relation  of  principal  and  agent  already  exists,  and  that  of  a  mere 
volunteer  or  stranger.  In  the  former  case  it  is  said  that  an  inten- 
tion to  ratify  will  always  be  presumed  from  the  silence  of  the  prin- 
cipal after  being  informed  of  what  has  been  done  on  his  account, 
while  in  the  latter  case  it  has  been  said  there  exists  no  obligation 
to  repudiate  the  transaction,  nor  will  silence  be  construed  into  a 
ratification.  2  Duer,  154,  178-182,  note  5;  1  Arm.  Ins.  151;  Story 
Ag.  §§  255,  258;  Ward  vs.  Williams,  26  111.  451;  Gold  Min.  Co.  vs. 
National  Bank,  96  U.  S.  640. 


Chap.  V]  Hetn  vs.  O'Hagen-.  189 

Whether  silence  operates  as  presumptive  proof  of  ratification  of 
the  act  of  a  mere  volnnteer  must  depend  npon  the  particular  cir- 
cnmstances  of  the  case.  If  those  circumstances  are  such  that  the 
inaction  or  silence  of  the  party  sought  to  be  charged  as  principal 
would  he  likely  to  cause  injury  to  the  person  giving  credit  to,  and 
relying  upon,  such  assumed  agency,  or  to  induce  him  to  believe 
such  agency  did  in  fact  exist,  and  to  act  upon  such  belief  to  his 
detriment,  then  euch  silence  or  inaction  may  be  considered  as  a 
ratification  of  the  agency. 

The  rule  is  stated  by  the  Supreme  Court  of  Wisconsin  in  the 
case  of  Saveland  vs.  Green,  40  Wis.  438,  as  follows:  "The  rule  as 
to  what  amounts  to  a  ratification  of  an  unauthorized  act  is  element- 
ary, and  may  be  stated  thus:  When  a  person  assumes  in  good 
faith  to  act  as  agent  for  another  in  a  given  transaction,  but  acts 
without  authority,  whether  the  relation  of  principal  and  agent 
does  or  does  not  exist  between  them,  the  person  in  whose  behalf 
the  act  was  done,  upon  being  fully  informed  thereof,  must,  within 
a  reasonable  time,  disaffirm  the  act,  at  least  in  cases  where  his 
silence  might  operate  to  the  prejudice  of  innocent  parties,  or  he 
will  be  held  to  have  ratified  such  unauthorized  act.'* 

The  qualification  of  good  faith  is,  it  seems  to  me,  unnecessary  in 
the  person  who  assumes,  without  authority,  to  act  as  agent.  If  the 
person  with  whom  he  deals  as  agent  acts  in  good  faith,  and  with 
reasonable  care,  the  act  is  capable  of  being  ratified  by  the  person 
on  whose  behalf  such  pretended  agent  assumes  to  act,  whether  the 
agent  himself  acts  bona  fide  or  mala  fide. 

In  this  case  the  direct  results  of  the  silence  of  defendant,  and  hia 
neglect  to  inform  plaintifE  in  a  reasonable  time  after  he  was  fully 
informed  of  what  had  been  done,  was  to  lead  plaintiff  into  the  belief 
that  the  shoemaker  was  in  fact  the  agent  of  defendast,  and  caused 
the  plaintiff  to  sell  to  defendant,  as  he  supposed,  another  invoice  of 
goods,  which  he  sent  to  defendant  by  express,  and  also  mailed  to 
him  the  invoice  of  the  second  bill,  which  defendant  received. 
Here,  by  his  silence,  he  permitted  this  shoemaker,  whose  name 
neither  the  plaintiff  nor  defendant  knows,  to  defraud  the  plaint- 
iff by  pretending  to  act  for  and  on  his  behalf.  Under  these 
circumstances  the  defendant,  by  his  silence  and  tacit  acquiesc- 
ence in  the  conduct  of  the  shoemaker,  must  be  held  to  ratify 
the  agency.  Defendant  knew  that  the  goods  were  sent  to  him  by 
express,  and  knew  that  the  shoemaker  had  in  some  manner  gotten 
possession  of  the  goods  from  the  express  company.     How,  it  does 


190  Oases  on  Agency.  [Book  I 

not  appear;  whether  by  defendant's  direction  or  assent,  or  by  the 
Bhoemaker's  representing  himself  to  the  company  as  the  agent  of 
defendant.  Defendant,  however,  knew  that  the  shoemaker  had 
received  both  consignments  of  goods  from  the  express  ofiBce,  and 
he  had  left  both  invoices  with  the  shoemaker.  He  went  with 
plaintiff  to  the  shop  occupied  by  the  shoemaker,  who  then  paid 
$21,  which  was  endorsed  upon  the  first  invoice,  and  defendant  then 
told  the  plaintiff  that  he  would  see  that  he  got  the  balance  of  the 
money,  but  forbade  him  from  sending  any  more  goods  in  that  way. 
This  promise  was  not  to  pay  the  debt  of  another,  but  his  own  debt. 
It  does  not  appear  that  defendant  at  this  time  repudiated  the 
agency  or  the  authority  of  the  shoemaker  to  order  the  goods  upon 
his  credit.  He  had,  by  his  contract,  ratified  the  act,  and  his 
promise  was  not  that  he  would  see  that  the  shoemaker  would  pay 
the  balance,  but  that  he  would  see  that  he  got  the  balance  of  the 
money. 

The  statute  of  frauds  has  no  application  to  the  facts  of  this  case. 
It  was  the  promise  of  the  defendant  to  pay  his  own  debt,  made  so 
by  his  ratification  of  the  act  of  the  shoemaker  in  ordering  the 
goods  in  his  name.  He  remained  silent  when  he  should  have 
spoken,  and  by  his  silence  led  the  plaintiff  to  believe  that  he  was 
his  debtor,  while  lying  by  and  seeing  another  person  appropriate 
goods  which  had  been  consigned  to  him  under  representations  that 
he  had  ordered  them. 

The  judgment  should  be  affirmed. 


(42  Maine,  157.) 

RICE    vs.    McLARKEN. 

{Supreme  Judicial  Court  of  Maine,  1S56.) 

This  was  an  action  to  recover  the  price  of  the  brig  Typee  which 
the  plaintiff  claimed  to  have  sold  and  delivered  to  the  defendant. 
The  brig  was  wrecked  and  lost  before  payment  was  made. 

Bradbury y  for  plaintiff. 
Hayden,  for  defendant. 

May,  J.  (Omitting  irrelevant  portion.)  The  case  shows  that 
the  vessel,  as  early  as  the   11th   of  November,   was  taken   into 


Chap.  V]  Rice  vs.  McLaeeen-.  191 

possession  by  the  defendant,  and  that  he  from  that  time,  acting  in 
connection  with  Capt.  Larkin,  as  master  under  him,  took  the 
exclusive  management  and  control  of  her.  lie  procured  freight 
for  her,  and  sent  her  to  sea  a  few  days  only  before  her  loss.  This 
was  done  with  the  assent  of  Mr.  Wheeler,  the  agent  of  the  plaintiff, 
who  informed  the  defendant  at  the  time  he  took  possession  that 
"  the  vessel  was  to  be  at  his  expense  and  risk  from  that  day."  The 
plaintiff,  from  that  time,  ceased  to  exercise  any  control  over  her, 
and  would  not  have  been  liable  for  repairs  subsequently  made  with- 
out his  direction.  Cutler  vs.  Thurlo,  20  Maine,  213;  2^i/ler  vs. 
Holmes,  38  Maine,  238. 

These  acts  of  the  plaintiff's  agent  appear  to  have  been  either 
previously  authorized  or  subsequently  ratified.  As  early  as  the  9th 
of  November,  the  plaintiff  wrote  to  him  from  Wilmington,  inform- 
ing him  of  the  defendant's  offer,  and  of  its  acceptance.  This  letter 
contains  the  following  language:  ''You  will  get  all  the  money  you 
can,  and  take  such  security  for  the  balance  as  for  assurance  of 
*  •  *.  See  that  it  is  right.  He  will  perhaps  pay  all.  If  so,  it 
will  suit  much  better.  SHU,  do  whatever  will  make  sale  and  close 
up  Typee."  The  authority  here  given  is  very  broad.  It  is  said, 
however,  that  these  important  acts  of  the  agent  must  have  been 
done  before  the  reception  of  the  letter.  This  fact,  if  it  be  a  fact, 
does  not  alter  the  case.  When  received,  it  was  a  complete  ratifica- 
tion of  the  acts,  especially  as  there  was  no  subsequent  attempt  to 
revoke  them.  These  acts  of  the  parties,  in  transferring  and  accept- 
ing the  possession  and  control  of  the  vessel,  amount  to  an  absolute 
and  unconditional  delivery  under  the  contract.  There  seems  to  be 
nothing  in  the  case  to  qualify  this  delivery.  If  the  delivery  had 
been  upon  conditions  not  performed,  the  property  might  not  have 
passed.  Hussey  et  al.  vs.  Thornton  et  al.,  4  Mass.  405,  3  Am.  Dec. 
224;  Smith  vs.  Dennie,  6  Pick.  262,  17  Am.  Dec.  308.  Under  the 
circumstances,  we  think  it  did  pass.     ♦    *     * 

Judgment  for  plaintiff. 

Note.— See  Moore  vs.  Lockett,  2  Bibb,  (Ky.)  67, 4  Am,  Dec  683;  Stillman 
vs.  Fitzgerald,  87  Minn,  iqq. 


192  Cases  ojt  Agency.  [Book  I 

(68  Alabama,  167.) 

JONES    vs.    ATKINSON. 

(Supreme  Court  of  Alabama,  December,  18S0.) 

This  was  an  action  of  statutory  detinne  brought  by  Atkinson 
against  Jones  to  recover  a  certain  mnle  called  John.  Plaintiff  had 
rented  a  mnle  called  Jerry  to  one  Pritcliett;  Pritcliett  traded  Jerry 
for  John;  then  he  traded  John  for  a  mare  with  one  Clanton;  and 
Clanton  sold  or  traded  John  to  the  defendant. 

Defendant  requested  the  court  to  charge  that,  if  the  jury  believe 
there  was  no  sale  of  the  mule  Jerry  by  plaintiff  to  Pritchett,  but 
simply  a  hiring;  and  that  when  Jerry  was  traded  for  John,  the 
plaintiff  ratified  the  trade;  then,  if  Pritchett  afterwards  traded 
John  for  the  mare,  and,  while  Pritchett  had  her,  plaintiff  claimed 
her  as  his  own  and  offered  to  trade  her  away,  this  was  a  ratification 
of  the  trade  of  John  for  the  mare,  and  plaintiff  cannot  recover. 
This  the  court  refused.  Plaintiff  recovered,  and  defendant  brings 
error. 

R.  GaiUard  and  Jno.  T.  Kilpatrich,  for  appellant. 
S.  J.  Cuming,  contra. 

Stone,  J.  When  we  first  considered  the  charge  refused  in  this 
case,  we  doubted  somewhat  whether  the  hypothesis  or  premises, 
justified  the  conclusion  it  invoked.  Knowledge  of  the  unauthorized 
act  done  is  a  necessary  element  in  every  binding  ratification  and 
knowledge  is  not  expressed  in  the  charge,  as  one  of  the  conditions 
on  which  a  verdict  for  the  defendant  was  claimed.  "We  now  think 
that,  under  the  facts  and  circumstances  shown  in  the  evidence, 
that  constituent  was  necessarily  implied.  The  acts  of  the  ratifica- 
tion supposed  in  the  charge  are,  that  Atkinson,  while  said  mare 
was  in  the  possession  of  Pritchett,  claimed  her  as  his  property, 
and  offered  to  trade  her.  The  undisputed  facts  are,  that  Pritchett 
had  in  his  possession  a  mule  called  Jerry,  which  Atkinson  claimed 
as  his  property;  that  Pritchett  traded  the  mule  Jerry  for  a  mule 
named  John,  and  Atkinson  ratified  the  trade,  and  claimed  the 
mule  John  as  his  property,  and  that  subsequently  Pritchett  traded 
the  mule  John  for  the  mare  called  the  **  Clanton  mare."  Now, 
the  only  claim  Atkinson  could  have  or  assert  to  the  mare,  rested 
on  the  title  he  acquired  by  the  exchange  of  the  mule  John  for  her. 


Chap.  V]  Jones  vs.  Atkinson".  193 

This  claim,  if  he  made  it,  rests  alone  on  the  fact  that  she  stood  in 
the  place  of  the  mule  John.  If  he  claimed  the  mare,  and  if  he 
asserted  and  attempted  to  exercise  acts  of  ownership  over  her,  this 
was  a  ratification,  and  heing  once  made,  he  could  not  revoke  it, 
unless  it  was  made  under  a  misapprehension  of  facts.  Uis  right 
and  claim  to  the  mare  had  no  foundation  to  rest  on,  unless  he  had 
parted  with  right  and  claim  to  the  mule.  He  could  not  claim 
hoth,  and  claiming  one,  he  renounced  the  other. 

The  case  of  Mcelian  vs.  Forrester,  52  N.  Y.  277,  presented  a 
question  of  ratification  vel  non.  Pinkney,  as  the  attorney  and 
agent  of  Bertine,  was  intrusted  with  the  collection  of  a  claim  due 
the  latter.  Without  any  authority  from  his  principal,  Pinkney 
took  from  the  debtor  a  deed  to  lands,  absolute  on  its  face,  but 
intended  as  security  only.  The  Court  of  Appeals  said:  *' There 
was  no  dealing  on  the  subject  between  the  plaintiff  (debtor)  and 
Bertine,  except  through  Pinkney.  The  evidence  justifies  the 
inference  that  the  deed  was  received  by  Pinkney  for  Bertine,  in 
'pursuance  of  the  agreement  made  between  Pinkney  and  the  plaint- 
iff, and  delivered  by  Pinkney  to  Bertine. 

**The  ngency  of  Pinkney  was  to  collect  the  debt,  not  to  purchase 
lands.  When,  under  those  circumstances,  Pinkney  delivered  to 
Bertine  the  deed  obtained  from  the  plaintiff,  it  was  the  duty  of 
Bertine  to  inquire,  and  of  Pinkney  to  communicate,  under  what 
arrangement  the  deed  had  been  obtained.  In  the  absence  of  any 
evidence  to  the  contrary,  the  presumption  is  that  these  duties  were 
performed.  If  not,  and  Bertine  received  the  deed  blindly,  without 
receiving  or  making  any  inquiry,  he  must  be  deemed  to  have  con- 
fided the  whole  matter  to  his  attorney,  and  adopted  whatever 
arrangement  the  latter  may  have  made  to  obtain  the  deed."  Carv- 
ing vs.  Southland,  3  Hill,  553.  And  a  ratification  once  made 
becomes  irrevocable.  Wharton  on  Agency,  §  73;  Buck  vs.  Jones, 
16  Texas,  461;  Clark  vs.  Van  liiemsdyk,  9  Cranch,  153;  Seago  vs. 
Martin,  6  Heisk.  308;  Story  on  Agency,  §  253;  Lee  vs.  Fontaine, 
10  Ala.  755;  Firemans'  Ins.  Co.  vs.  McMillan,  29  Ala.  147; 
Crawford  vs.  Barkley,  18  Ala.  270.  In  Lee  vs.  Fontaine, 
supra,  it  is  said:  **Even  the  silence  of  the  principal  will,  in  many 
cases,  amount  to  a  conclusive  presumption  of  the  ratification  of  an 
unauthorized  act." 
The  charge  asked  should  have  been  given. 

Eeversed  and  remanded. 
IB 


194  Oases  on  Aqekct.  [Book  I 

(62  Maine,  330.) 

SCHOOL  DISTRICT  vs.  ^TNA  INSURANCE  COMPANY. 

(Supreme  Judicial  Court  of  Maine,  187S.J 

Action  upon  a  policy  of  insurance  upon  the  district  school-house. 
Defense,  that  the  district  had  sold  the  school-house.  It  appeared 
that  the  committee  were  authorized  by  resolution  to  sell  the  build- 
ing, and  had  sold  it  for  some  cash  and  balance  in  notes.  The 
committee  had  retained  the  notes  and  cash  in  their  own  hands, 
and  the  district  never  had  any  benefit  from  them,  and  passed  reso- 
lutions condemning  the  sale  at  the  first  meeting  held  after  the  sale 
had  been  made.  The  jury  rendered  a  special  verdict,  and  judg- 
ment was  for  the  plaintiff. 

Wales  Hulhard,  for  defendant, 
Gould  &  Moore,  for  plaintiff. 

Peteks,  J.  The  fact  that  the  sale  of  the  school-house  in  ques- 
tion was,  in  most  part,  upon  credit  instead  of  for  cash,  as  the  vote 
of  the  district  imported  it  should  have  been,  settles  this  contro- 
versy for  the  plaintiffs.  This  phase  of  the  case  does  not  appear 
to  have  been  presented  in  any  of  the  bills  of  exceptions  or  motions 
considered  by  the  court  before. 

The  authority  was  by  recorded  vote  easily  to  be  seen  and  under- 
stood by  those  concerned.  It  is  needless  to  cite  cases  to  establish 
the  general  principle  that  a  specific  authority  or  direction  to  sell 
does  not  authorize  a  sale  on  credit,  unless,  at  the  place  of  sale  there 
is  an  usage  of  business,  general  or  special,  in  reference  to  which  an 
authority  to  sell  upon  credit,  is  supposed  to  be  given.  It  is  sug- 
gested in  argument  that  this  doctrine  may  be  inapplicable  to  per- 
sons, acting  as  agents  for  quasi  corporations,  like  towns  and  school 
districts,  and  that  they  might  be  regarded  from  convenience  and 
necessity,  as  clothed  with  executive  and  prudential  power,  superior 
to  that  of  agents  of  ordinary  business  corporations  or  persons.  "We 
find  nothing  in  the  authorities,  and  see  no  reason  upon  principle, 
in  support  of  such  a  modification  of  the  general  rule.  If  there  is 
any  distinction,  it  would  seem  that  the  acts  of  public  agents,  acting 
in  pursuance  of  a  special  authority  are  to  be  construed  perhaps 
more  strictly  than  the  acts  of  agents  of  private  persons,  upon  the 


Clmp.  V]       School  District  vs.  Insurance  Co.  195 

ground  that  public  agents  are  less  within  the  immediate  supervision 
and  control  of  their  principals.  State  of  Illinois  vs.  Delafield,  8 
Paige,  527;  s.  c.  26  ^'end.  192;  Cushing  vs.  Louqfelloiv,  26  Maine, 
306.  The  jury,  by  a  special  verdict,  find  that  the  sale  was  made 
upon  one  year's  credit,  except  ten  per  cent  cash;  that  the  proceeds 
of  the  sale  never  came  into  the  possession  of  the  district,  nor  were 
used  by  them;  and  that  the  district  never  ratified  the  sale.  These 
findings  are  supported  by  the  evidence. 

The  district  would  not  be  bound  by  the  sale  made  without 
authority,  unless  in  some  way  by  them  ratified.  The  ratification 
must  be  by  the  principal,  and  not  by  the  agent  of  his  own  acts. 
The  retention  of  the  money  and  notes  by  the  committee,  unless 
consented  to  by  the  district,  would  be  no  more  evidence  of  an 
authorized  contract  than  their  taking  the  same  originally  would  be. 
The  ratification  must  be  proved.  It  is  not  in  this  respect  like  a 
contract  obtained  by  fraud  which  stands  till  rescinded;  but  a  con- 
tract made  by  an  agent  without  authority  is  no  contract  unless 
shown  to  be  ratified,  though  such  ratification  may,  under  a  variety 
of  circumstances,  be  presumed.  A  presumption  from  the  non-action 
of  a  corporation  like  a  school  district,  would  be  less  readily  inferri- 
ble than  in  the  case  of  individuals  who  can  more  readily  act.  A 
district  can  be  bound  only  by  some  recorded  vote,  or  some  act,  or 
an  acquiescence  upon  their  part  as  a  corporation,  equivalent  thereto. 
The  unoflQcial  conduct  of  individuals  in  the  district  has  no  control- 
ling effect.  As  bearing  upon  these  general  propositions  see  Cham- 
lerlain  vs  Dover,  13  Maine,  4T4,  29  Am.  Dec.  617;  Davis  vs.  School 
District  in  Bradford,  24  Maine,  349;  White  vs.  Sanders,  32  Maine, 
188;  Fisher  vs.  School  District  in  Attlehorough,  4  Cush.  494;  Bliss 
vs.  Clark,  16  Gray,  60. 

In  this  case,  the  sale  was  not  warranted  by  any  vote.  All  parties 
are  presumed  to  have  known  it.  The  proceeds  of  the  sale  have 
remained  in  the  hands  of  the  committee  from  that  day  to  this. 
The  district  have  neither  had  nor  used  them,  directly  or  indirectly. 
They  were  neither  deposited  with  the  ofiicers  of  the  district  who 
dispense  its  funds  and  credit,  nor  with  the  town  treasurer  where 
the  money  of  the  district  should  be  kept.  The  committee  never 
informed  their  principals  of  their  action  in  any  official  communi- 
cation or  form  whatever.  Beyond  all  this  there  is  plenary  evidence 
to  inspire  the  belief  that  the  committee,  with  the  full  knowledge 
of  the  vendees,  were  executing  the  trust  committed  to  them,  in 
Bome  respects  at  least,  unfaithfully.     The  rule  that  where  a  prin- 


196  Cases  o:s  AoEifCT.  [Book  I 

cipal  has  full  knowledge  of  the  acts  of  his  agents,  he  must  dissent, 
and  give  notice  of  his  dissent  within  a  reasonable  time,  is  stringent 
in  its  application  only  where  the  agent  and  those  dealing  with  him 
are  acting  in  good  faith,  and  the  principal  receives  a  direct  benefit 
therefrom.  Here  no  benefit  whatever,  but,  on  the  other  hand,  an 
injury  would  have  accrued  from  the  action  of  the  committee,  if 
about  four  hundred  dollars  were  to  be  received  for  a  property, 
admitted  in  the  report  of  the  case  to  have  been  worth  several  times 
that  sum.  All  the  subsequent  corporate  action  of  the  district,  so 
far  as  any  appears,  shows  that  the  sale  was  repudiated.  An  insurance 
on  the  building  was  renewed.  Attempts  were  made  to  hold  dis- 
trict meetings  in  the  house.  An  effort  was  undertaken  to  have  the 
building  put  back  to  the  place  from  which  the  purchasers  removed 
it.  The  persons  claiming  to  own  the  building  were  prosecuted  by 
a  vote  of  the  district  as  trespassers  (although  the  suit  was  subse- 
quently withdrawn),  a  significant  evidence  of  disaffirmance  of  the 
contract  attempted  to  be  made.  Upon  all  this  evidence  the  find- 
ing of  the  jury  upon  this  point  must  be  deemed  to  be  a  correct  one; 
and  the  rulings  and  refusals  to  rule  upon  the  questions  involved  in 
Buch  findings  were  sufficiently  favorable  to  the  party  excepting.  ♦  * 

Verdict  for  pkintifi  sustained. 


(47  New  York,  199.) 

BALDWIN  vs.  BUREOWS. 

CNew  York  Court  of  Appeals,  January,  187S.J 

Blanchard,  Burrows,  Prouty,  McClellan  and  Southworth  had 
contributed,  in  varying  proportions,  to  raise  a  large  fund  to  be 
invested  in  cotton.  Blanchard  applied  to  the  plaintiffs  for  an 
advance  upon  the  cotton,  saying  that  the  co-owners  had  about 
1,000  bales  and  wanted  an  advance  of  $30,000  on  the  whole  lot;  that 
he  had  consulted  with  the  others  and  that  they  authorized  the 
arrangement.  Blanchard  delivered  to  plaintiffs  255  bales  and 
plaintiffs  advanced,  between  April  5  and  April  24,  1886,  various 
sums  aggregating  $22,000,  and  on  the  25th  of  April,  the  further 
Bum  of  $6,000.  All  this  money  was  paid  to  Blanchard,  and  plaint- 
iffs made  no  inquiry  of  the  other  co-owners  as  to  Blanchard's 


Chap.  V]  Baldwin  vs.  Buiaiows.  197 

authority.  On  April  24  Blanchard  gave  Burrows  $3,000,  Sonth- 
•W'orth  11,000  and  Prouty  $3,000,  telling  them  that  he  had  obtained 
an  advance  of  $15,000  on  the  cotton.  They  at  first  declined  to 
receive  it,  as  they  had  known  nothing  about  the  advances,  but 
Blanchard  assured  them  that  the  advance  had  been  made  on  his 
responsibility,  that  they  were  not  responsible  for  it,  and  that  the 
advance  was  a  personal  transaction  between  plaintiUs  and  himself. 
Thereupon  they  accepted  the  money. 

Plaintiiis  sold  the  cotton  received  by  them  and  there  remained  a 
balance  due  them  of  about  $17,000  for  which  they  applied  to  the 
co-owners,  who  utterly  denied  Blanchard's  authority  to  borrow 
money  on  their  account.  Afterwards  McOlellan  separately  com- 
promised with  plaintiff,  and  Blanchard  became  bankrupt,  and  this 
action  -was  brought  against  the  others.  PlaintifEs  recovered  in  the 
court  below,  and  defendant  appealed. 

J,  M.  Van  Cott,  for  appellants. 
J.  H.  Choaie,  for  respondents. 

Rapallo,  J.  Three  distinct  grounds  of  liability  on  the  part  of 
the  defendants  were  submitted  to  the  consideration  of  the  jury;  (1) 
that  of  a  copartnership  resulting  from  the  purposes  for  which  the 
cotton  was  purchased;  (2)  that  of  express  authority  to  Blanchard 
from  his  co-owners  to  obtain  the  advances;  (3)  that  of  a  subsequent 
ratification  by  the  defendants  of  the  acts  of  Blanchard.  The 
verdict  being  general,  it  is  impossible  to  determine  upon  which  of 
these  three  grounds  the  jury  based  their  verdict,  and  consequently  if 
it  shall  be  found  that  either  of  them  was  improperly  submitted  to  the 
jury,  the  judgment  cannot  be  sustained,  unless  it  shall  also  appear 
that  some  one  of  them  was  so  clearly  established  by  uncontroverted 
evidence  as  to  have  rendered  it  the  duty  of  the  court  to  direct  a 
verdict  for  the  plaintiffs.  (The  court  then  determines  that  no 
partnership  existed  between  the  co-owners.) 

The  question  of  an  express  authority  to  Blanchard  to  make  the 
shipment  and  obtained  the  advances  was  separately  submitted  to 
the  jury.  The  testimony  of  Blanchard  was  sufficient  to  authorize 
the  submission  of  that  question,  including  the  question  of  the 
authority  of  Southworth  to  consent  on  behalf  of  Burrows.  But 
Blanchard's  testimony  on  both  of  these  points  was  contradicted, 
and  we  cannot  say  that  the  jury  necessarily  passed  upon  them,  as 
thoy  may  have  rested  their  verdict  upon  a  finding  of  copartnership 
ah  ijiitio,  under  the  instructions  of  the  court. 


198  Cases  o:s  Agency.  [Book  I 

It  follows  that  the  error  in  these  instructions  is  fatal  to  the 
judgment,  unless  a  ratification  was  so  clearly  made  out  as  to  leave 
nothing  for  the  consideration  of  the  jury,  and  to  have  rendered  it  the 
duty  of  the  judge  to  direct  a  verdict  for  the  plaintiUs  on  that  ground. 

To  test  this  question,  we  must  look  at  the  testimony  of  the 
defendants,  for  if,  according  to  their  version  of  the  transaction, 
viewed  in  the  most  favorable  light  in  which  the  jury  might  properly 
have  regarded  it,  there  was  not  a  sufficient  ratification  to  bind  the 
defendants  in  solido  for  the  whole  amounts  advanced  by  the 
plaintiffs,  the  court  would  not  have  been  justified  in  directing  the 
verdict  which  was  rendered. 

The  defendants,  Prouty  and  Southworth,  admit  that  on  the  24th 
of  April,  1866,  they  received  from  Blanchard,  Southworth,  $1,000 
and  Prouty  $3,000,  and  that  Blanchard  informed  them  at  the  time 
that  he  had  obtained  $15,000  from  the  plaintiffs,  as  an  advance 
upon  the  shipment  through  them  of  a  portion  of  the  cotton.  But 
they  aver,  in  substance,  that  when  Blanchard  offered  them  his 
checks  and  informed  them  of  what  he  had  done,  they  denied  his 
authority  to  ship,  or  to  obtain  the  advances,  and  refused  to  receive 
the  checks,  but  that  they  were  finally  induced  to  accept  them,  by 
Blanchard's  assurance  that  he  had  obtained  the  $15,000  advance 
upon  the  sole  credit  of  Blanchard  &  Co.,  and  in  such  a  manner  as 
not  to  render  the  other  defendants  responsible  to  the  parties  mak- 
ing the  advance,  in  case  of  a  reclamation;  that  the  advance  was  a 
transaction  between  the  plaintiffs  and  Blanchard  &  Co.;  that  the 
defendants  had  nothing  to  do  with  the  plaintiffs,  and  that  the  pay- 
ment was  a  matter  between  Blanchard  &  Co.  and  the  defendants;  also 
that  Blanchard  did  not  disclose  that  he  had  obtained  more  than  $15,- 
000,  or  that  he  contemplated  obtaining  any  further  advances.  That, 
relying  upon  these  statements  of  Blanchard,  they  received  the  money, 
Southworth  at  the  same  time  receiving  $3,000  for  account  of  the 
defendant,  Burrows,  who  was  absent;  that  this  latter  sum  was 
deposited  by  Southworth  to  the  credit  of  a  bank  with  which  Bur- 
rows was  connected,  and  Burrows  advised  of  the  deposit.  Burrows 
testifies  that  he  was  informed  that  this  deposit  proceeded  in  some 
way  from  the  cotton  transaction,  but  how  he  did  not  know;  that 
the  only  authority  he  had  given  to  Southworth  was  to  look  after  or 
watch  his  interest  in  the  cotton. 

All  these  parties  testify  that  they  did  not  learn  the  actual  facts 
until  long  after  the  cotton  delivered  to  the  plaintiff  had  been 
shipped  to  England,  and  the  residue  destroyed  by  fire. 


Chap.  V]  Baldwin  vs.  Buerows.  19G 

It  appears  that  at  the  time  of  the  payment  by  Blanchard,  April 
24th,  $22,000  had,  in  fact,  been  advanced  by  the  plaiutilis,  and 
that  on  the  following  day  they  made  a  further  advance  to  Blanch- 
ard &  Co.  of  $6,000,  which  latter  sum  is  included  in  the  recovery. 

As  to  this  latter  sum,  there  clearly  was  no  ratification;  nor  was 
it  advanced  on  the  strength  of  the  acceptance  by  Prouty,  South- 
worth  and  Burrows  of  the  sums  paid  to  them  on  the  twenty-fourth, 
for  it  does  not  appear  that  the  fact  of  such  payments  was  communi- 
cated to  the  plaintiffs  before  the  advance  of  the  $G,000.  From  the 
beginning,  the  plaintiffs  seem  to  have  relied  wholly  upon  the  state- 
ments of  Blanchard  as  to  express  authority  from  his  co-owners,  and 
not  upon  any  act  of  the  defendants.  The  plaintiffs  were  informed 
by  Blanchard  of  the  separate  interests  of  the  defendants,  and  do 
not  even  seem  to  have  supposed  that  they  were  dealing  with  them 
on  the  footing  of  a  partnership;  for  in  January,  1867,  they  wrote 
to  South  worth,  that  they  had  charged  him  with  one-fifteenth  of  the 
loss  on  the  cotton,  and  demanded  of  him  that  proportion  only. 
They  trusted  Blanchard's  representations  at  their  peril,  making  no 
inquiry  of  Prouty  or  Southworth,  though  they  both  resided  in  the 
Bame  city  with  the  plaintiffs;  and  it  does  not  appear  that  either 
they  or  Burrows  had  done  anything  to  hold  Blanchard  out  as 
authorized  to  contract  in  their  names.  This  is  a  case,  therefore, 
which  depends  upon  the  actual  authority  given,  or  upon  the  ratifi- 
cation of  specific  acts;  and  although  such  ratification  is,  as  to  the 
act  specially  ratified,  equivalent  to  a  previous  authority,  it  is  not 
retroactive  to  the  extent  of  binding  the  principal  for  other  acts  in 
excess  of  the  authority  of  the  agent,  though  the  principal  might 
have  been  bound  for  such  other  unauthorized  acts,  if  they  had  been 
done  under  color  of  a  previous  authority  actually  given.  The  ratifi- 
cation, therefore,  if  it  had  been  made  out  of  the  borrowing  of  the 
$22,000  not  having  been  communicated  to  the  lender,  and  they 
not  having  acted  on  the  faith  of  it,  would  not  carry  with  it  the 
subsequent  advance  of  $6,000,  {SL  John  vs.  Redmond,  9  Porter 
Ala.  R.  428),  though  it  might  be  that  if  there  had  been  a  previous 
authority  to  borrow  the  $22,000,  it  would  have  bound  the  defend- 
ants for  the  subsequent  advance,  if  the  precise  limit  of  the  agent's 
authority  had  not  been  known  to  the  lender. 

But  was  there  a  clear  case  on  the  uncontroverted  facts  of  a  rati- 
fication of  the  act  of  Blanchard,  in  obtaining  the  advance  of  the 
122,000,  or  any  part  of  it,  on  the  joint  credit  of  all  the  owners  of 
the  cotton?     Assuming  the  transaction  to  have  been  as  stated  in 


200  Cases  on  Agency.  [Book  I 

the  testimony  of  Prouty,  Sonthwortli,  and  Burrows,  Blanchard  & 
Co.,  were  mere  bailees  of  the  cotton  for  the  specific  purpose  of 
picking  and  drying  it  and  preparing  it  for  sale,  for  a  compensation 
to  be  paid  to  them  by  the  owners.  The  unauthorized  pledge  and 
Bhipment  of  it  by  Blanchard  were,  as  to  the  shares  of  his  co-own- 
ers, a  conversion,  which  rendered  him  liable  to  them  for  the  value 
of  their  respective  shares.  By  receiving  from  him  a  portion  of  the 
advances  which  he  had  obtained,  on  his  assurance  that  he  had 
obtained  them  on  the  credit  of  Blanchard  &  Co.,  and  in  ignorance 
that  their  own  credit  had  been  used,  they  did  not  ratify  his  use  of 
their  names.  There  can  be  no  ratification  of  an  act  without  knowl- 
edge of  the  act  having  been  done.  The  ratification  of  an  act  previ- 
ously unauthorized  must,  in  order  to  be  binding,  be  made  with  a  full 
knowledge  of  all  the  material  facts.  {0 wings  vs.  Hull,  9  Pet.  608; 
Nixon  vs.  Palmer,  8  N.  Y.  898;  Seymour  vs.  WycJcoff,  6  Seld.  224; 
Smith  vs.  Tracy,  36  N.  Y.  79,  (an/e  p.  154);  2  Greenlf.  Ev.  §  66; 
Story  on  Agency,  §§  239,  253. )  The  receipt,  even  from  an  agent,  of 
money  paid  him  on  a  contract,  does  not  bind  the  principal  to  the  con- 
tract, unless  he  knows  on  what  account  the  money  was  received  and 
the  terms  of  the  contract.  ( Penn.  Co.  vs.  Dandridge,  8  Gill  &  J. 
323,  29  Am.  Dec.  543.) 

It  cannot  be  contended,  therefore,  that  so  long  as  the  defendants 
remained  ignorant  that  the  advances  had  been  made  upon  their 
credit,  there  was  any  ratification;  but  it  is  claimed  that  by  not 
offering,  when  they  became  apprised  of  the  facts,  to  return  to  the 
plaintiffs  the  sums  which  they  had  received  of  Blanchard  they 
ratified  the  original  transaction  and  became  liable  in  solido  as  prin- 
cipals for  all  the  advances  obtained  from  Blanchard  &  Co.  But 
that  result  does  not  follow. 

In  the  first  place,  the  defendants  testify  that  they  did  not  learn 
the  facts  until  long  after  the  cotton  had  been  sent  to  England.  It 
was  then  too  late  to  restore  matters  to  their  original  condition. 
Furthermore,  according  to  their  statement,  they  had  not  received 
the  money  as  their  own,  or  as  arising  from  a  dealing  between  them 
and  the  plaintiffs  through  Blanchard  as  their  agent,  but  as  the 
money  of  Blanchard,  in  receiving  which  they  dealt  with  him  as  a 
principal.  He  had  misappropriated  their  property,  and  they  were 
entitled  to  payment  or  indemnity  from  him.  Had  they  known  all 
the  facts  at  the  time,  they  could  rightfully  have  repudiated  his 
acts,  and  demanded  and  received  from  Lim  the  value  of  their 
Bharea.     They  were  not  bound  to  look  to  the  plaintiffs  for  their 


Chap.  V  ]  Baldwin  vs.  Buekows.  201 

cotton.  They  conld  have  prosecuted  Blanchard,  or  settled  with 
him,  without  incurring  any  liability  to  the  plaintiffs.  And  even  if 
they  had  severally  received  of  Blanchard  payment  or  security  out 
of  the  same  money  which  they  knew  he  had  obtained  from  the 
plaintiffs  by  the  fraudulent  use  of  their  names,  and  that  money 
could  be  identified  and  followed,  the  receipt  of  it  by  them  as  his 
money,  to  indemnify  them  for  his  tortious  disposition  of  their 
property,  would  not  have  been  a  ratification  of  the  contract  which 
he  had  assumed  to  make  in  their  behalf,  nor  would  it  have  rendered 
them  jointly  liable  for  the  whole  amount  of  the  advance,  including 
what  Blanchard  retained.  They  would,  at  the  most,  have  been 
liable  for  what  they  received. 

The  mere  fact  that  the  proceeds  of  a  contract  made  by  one  person 
in  the  name  of  another  without  authority,  or  a  portion  of  them, 
have  come  to  the  hands  of  the  latter,  is  not,  of  itself,  sufficient  to 
render  him  liable  on  the  contract.  (Penn.  Co.  vs.  Dartdridge,  8 
Gill  &  Johns.  [Md.],  323,  29  Am.  Dec.  543;  Evans  vs.  Wells,  22 
Wend.  324;  Palmerton  vs.  Hnxford,  4  Den.  16G-168).  To  have 
that  effect,  the  proceeds  must  be  received  not  only  with  knowledge, 
but  under  such  circumstances  as  to  constitute  a  voluntary  adop- 
tion of  the  contract.  When  goods  are  purchased  by  one  assuming, 
without  authority,  to  be  the  agent  of  another,  if  the  latter  know- 
ingly receives  the  goods  so  purchased  as  his  own  property,  this  will 
amount  to  a  ratification  of  the  agency.  But  if  he  denies  the 
authority  of  the  pretended  agent  to  act  for  him  on  having  knowl- 
edge of  his  acts,  and  afterwards  receives  the  goods  as  the  property 
of  the  assumed  agent  in  payment  of  a  debt  due  from  him,  it  will 
not  amount  to  a  ratification.  (Hastings  vs.  Bin  gor  House  Pro- 
prietors, 18  Maine,  436.)  It  is  conceded  in  that  case,  that  the 
seller  of  the  goods  would  have  a  remedy  against  the  party  who 
received  them,  knowing  that  they  had  been  obtained  by  fraud. 
But  the  remedy  would  not  have  been  upon  the  original  contract  of 
purchase.  Receiving  them  as  the  property  of  the  fraudulent 
vendee,  is  inconsistent  with  an  adoption  of  his  assumed  agency. 
And  if  only  a  portion  of  the  goods  were  received,  the  recipient 
would  only  be  liable  for  that  portion. 

Clearly,  if  the  defendants  received  part  of  the  proceeds  inno- 
cently, as  the  money  of  Blanchard,  their  subsequent  omission  to 
return  what  they  had  received  could  not  make  them  liable  upon 
the  original  contract;  and  if  they  restored  the  money,  they  were 
entitled  to  recover  back  their  property  or  its  proceeds. 


202  Cases  on  Agency.  [Book  I 

The  plaintiffs  parted  with  their  money,  relying  wholly  on 
Blanchard's  representations  as  to  his  authority.  The  subsequent 
receipt  from  him  by  the  defendants  of  part  of  the  money,  tended 
in  no  way  to  accredit  him  or  to  mislead  the  plaintiffs  and  raises  no 
equity  in  their  favor,  upon  which  the  defendants  can  be  held  as 
joint  contractors.  It  is  true  that  frauds  might  be  committed  by 
putting  forward  an  insolvent  party, and  obtaining  advances  through 
him,  and  subsequently  denying  his  authority.  But  there  must  be 
Bome  evidence  of  such  fraud  to  create  a  liability. 

The  counsel  for  the  plaintiffs  has  referred  to  a  class  of  cases  in 
which  it  is  said  that  a  principal  cannot  enjoy  and  retain  the  fruits 
or  benefits  of  the  act  of  his  agent,  without  adopting  and  ratifying 
the  instrumentalities  by  which  those  fruits  were  obtained,  even 
though  employed  without  his  authority  or  knowledge;  and  also  to 
cases  establishing,  that  if  the  principal  ratifies  and  enjo^'s  the  bene- 
fit of  part  of  a  contract,  he  cannot  rej)udiate  the  rest.  The  first 
class  of  cases  referred  to  are  all  cases  of  acknowledged  agency  or  of 
acts  expressly  adopted  by  the  principal  as  done  for  him,  and  where 
the  principal  is  either  seeking  to  enforce  a  right  obtained  for  him 
by  his  agent,  or  has  had  the  benefit  of  a  contract  which  he  author- 
ized or  has  adopted  as  his  own;  and  the  controversy  has  been,  not  as 
to  the  authority  of  the  agent  to  make  the  contract,  but  as  to  the 
means  employed  by  him  to  accomplish  what  he  was  authorized  to 
do,  or  what  the  principal  has  accepted  as  done  for  him;  and  the 
instrumentalities  referred  to  are,  in  general,  frauds  committed  by 
the  agent  in  doing  the  authorized  or  ratified  act. 

When  the  principal  seeks  to  enforce  a  contract  or  right  obtained 
for  him  by  his  agent,  or  by  one  whose  agency  he  has  adopted,  it  ia 
well  established  that  the  fraud  of  the  agent  may  be  set  up  as  a 
defense  against  his  innocent  principal,  for  the  very  obvious  reason 
that  the  contract  or  other  right  which  the  principal  is  seeking  to 
enforce  is  tainted  and  vitiated  by  the  fraud  employed  by  his  agent 
in  obtaining  it;  and  the  principal,  though  himself  innocent,  takes 
it  subject  to  that  taint.  {Atwood  vs.  Small,  6  Clark  &  Fin.  449; 
Story  on  Agency,  sec.  419;    Dunlap's   Paley,  4th  Am.  ed.   325; 

Veazie  vs.    Williams,  8  How.  U.   S.   134;    Dexter  vs.   Adams,  2 
Denio,  646.) 

The  other  cases  which  hold  the  principal  liable  to  respond  for 
the  frauds  of  his  agent,  rest  upon  the  familiar  doctrine  that  the 
principal  is  bound  for  the  acts  of  the  agent  done  in  the  course  of 
his  employment,  and  even  for  his  frauds  and  other  torts,  when 


Chap.  V]  Baldwin  vs.  Buekows.  203 

committed  in  doing  what  he  was  entrusted  to  do,  {Hern  vs.  Nich- 
ols, 1  Salk.  289;  Story  on  Agency,  §§  452-454);  and  also  npou  the 
ground  that  a  principal,  by  adopting  a  contract  made  for  him,  and 
receiving  and  retaining  the  fruits  as  belonging  to  him  by  virtue  of 
that  contract,  assumes  responsibility  for  the  instrumentalities 
which  the  agent  may  have  employed  in  his  behalf  to  effect  the  con- 
tract. ( Veazie  vs.  Williams,  8  How.  U.  S.  134;  Bennett  vs.  Jud- 
son,  21  N.  Y.  238;  Mwell  vs.  Chamlerlain,  31  Id.  611.) 

It  must  be  observed,  however,  that  even  this  responsibility  for 
Instrumentalities  does  not  extend  to  collateral  contracts  made  by 
the  agent  in  excess  of  his  actual  or  ostensible  authority,  and  not 
known  to  the  principal  at  the  time  of  receiving  the  proceeds, 
though  such  collateral  contract  may  have  been  the  means  by  which 
the  agent  was  enabled  to  effect  the  authorized  contract,  and  the 
principal  retain  the  proceeds  thereof  after  knowledge  of  the  fact. 
{Smith  vs.  Tracy,  36  N.  Y.  79;  and  see  Hammond  vs.  Michigan 
State  Bank,  Walker's  Ch.  R.  214;  Young  vs.  White,  7  Beav.  506.) 
A  party  dealing  with  an  agent  is  bound  to  enquire  as  to  the  extent 
of  his  authority;  but  he  cannot  always  protect  himself  against  his 
frauds. 

The  cases  in  which  it  is  held  that,  if  the  principal  ratifies  and 
enjoys  the  benefit  of  a  part  of  a  contract  he  cannot  repudiate  the 
rest,  refer  to  an  intentional  ratification,  with  knowledge  of  all  that 
has  been  done.  (Story  on  Agency,  §  250;  Farmer's  Loan  (&  Trust 
Co.  vs.  Wahvorth,  1  N.  Y.  434;  Smith  vs.  Tracy,  36  N.  Y.  79; 
Dunlap's  Paley,  172,  173.) 

But  this  case  does  not  come  within  the  principle  of  any  of  those 
cited.  Here,  according  to  defendants'  version  of  the  facts,  the  acts 
of  Blanchard  were  not  done  as  the  means  of  accomplishing  any- 
,thing  which  he  was  authorized  by  the  defendants  to  perform  as 
their  agent,  nor  were  the  sums  paid  received  by  them  as  the  fruits 
of  any  contract  made  in  their  behalf  and  which  they  adopted,  but 
upon  an  independent  dealing  between  them  and  Blanchard,  and  as 
his  money  raised  on  his  own  credit  and  their  goods. 

The  judgment  cannot  be  sustained,  on  the  ground  that  the  evi- 
dence justified  the  direction  of  a  verdict  for  the  plaintiffs;  and  it 
must  therefore  be  reversed,  and  a  new  trial  ordered,  with  costs  to 
abide  the  event. 


204  Cases  ox  Agekct.  [Book  I 

(113  Massachusetts,  291,  18  Am.  Rep.  480.) 

TEACHER  vs.  PRAY. 

("Supreme  Judicial  Court  of  Massachusetts,  October,  187 S.) 

One  Gray  had  in  his  possession  a  horse  belonging  to  the  plaintiff 
Thacher.  Gray  also  owed  Thacher  for  potatoes  sold  to  him  by  the 
latter.  Gray  wrongfully  sold  the  horse  to  defendant  Pray,  receiv- 
ing in  payment  the  satisfaction  of  a  debt  which  he  owed  Pray,  and 
also  a  cashier's  check  or  draft  for  1100.  Gray  wrote  to  Thacher 
about  his  indebtedness  for  the  potatoes,  enclosing  this  check  and 
saying:  "I  send  you  a  check  for  one  hundred  dollars.  Please 
credit  me  for  the  same."  He  said  nothing  about  the  sale  of  the 
horse.  When  Thacher  discovered  that  the  horse  had  been  sold,  he 
demanded  its  return  of  Pray,  but  the  latter  refused  unless  Thacher 
returned  the  check  or  its  proceeds,  which  Thacher  declined  to  do. 
Thacher  then  brought  this  action  to  recover  the  horse  or  its  value. 

Thacher  asked  the  court  to  charge  the  jury  that  if  Gray  sent 
him  this  check  to  be  applied  on  account  of  the  potatoes,  and 
Thacher  so  received  and  applied  it  before  he  knew  of  the  sale  of 
the  horse,  the  mere  fact  that  it  was  the  same  check  that  Pray  gave 
Gray  for  the  horse  was  of  no  consequence,  and  that  Thacher'a 
receipt  and  application  of  the  check  would  not,  under  the  circum- 
stances, amount  to  a  ratification  of  the  sale  of  the  horse,  nor  was 
he  obliged  to  return  the  check  to  Pray  before  bringing  this  suit. 
The  court  declined  so  to  charge,  and  instructed  the  jury,  in  sub- 
stance, that  Thacher's  retention  of  the  check  after  he  knew  of  its 
origin  would  bar  the  action  and  amounted  to  a  ratification  of  the 
sale.     Verdict  for  defendant,  and  plaintiff  alleged  exceptions. 

W.  H.  Fox,  for  plaintiff. 

H.  J.  Fuller  (E.  H.  Bennett  with  him),  for  defendant. 

Endicott,  J.  The  instructions  upon  which  this  case  was  given 
to  the  jury  failed  to  notice  an  important  portion  of  the  evidence. 
If  the  only  dealings  between  the  plaintiff  and  Gray  related  to  this 
horse,  and  the  money  paid  for  the  horse  by  the  defendant  to  Gray, 
who  had  no  authority  to  sell,  had  been  sent  to  the  plaintiff,  the 
taking  and  keeping  it  might  be  a  ratification  of  the  sale  by  Gray; 
or,  if  the  plaintiff  had  wished  to  rescind  it,  he  should  return  the 
money  bo  received.      But  the  evidence  in  the  case  required  other 


Chap.  V  ]  Thachee  vs.  Pray.  205 

and  further  instrnctiona.  It  appeared  that  the  plaintiff  had  sent 
potatoes  to  Gray  for  sale,  and  there  was  evidence  tending  to  show 
that  the  check  for  llOO,  taken  hy  Gray  on  account  of  the  wrong- 
ful sale  of  the  horse,  was  paid  over  to  the  plaintiff,  received  by  him, 
and  accredited  on  account  of  the  potatoes,  and  the  plaintiff  did  not 
know  that  the  horse  had  been  sold  for  a  long  time  afterward. 
These  facts  justify  the  plaintiff's  prayer  for  instructions,  and  we 
think  they  should  have  been  given.  It  does  not  affect  the  righta 
of  the  parties  that  the  same  check  which  defendant  gave  Gray  was 
given  to  the  plaintiff,  if  it  was  applied  to  the  settlement  of  an 
existing  account  between  them,  without  any  notice  that  it  was 
a  part  of  the  proceeds  of  the  unauthorized  sale  of  the  horse. 
Being  indorsed  by  Gray,  it  was  in  the  plaintiff's  hands  payable  to 
bearer,  transferable  by  delivery,  and  subject  to  the  same  rules  as 
bank  bills,  coupons,  or  other  instruments  payable  in  money  to 
bearer.  Spooner  vs.  Holmes,  102  Mass.  503,  3  Am.  Eep.  491.  It 
is  as  if  Gray  had  cashed  the  check  and  sent  the  identical  or  other 
bills  to  the  plaintiff. 

It  was  held  in  Lime  RocJc  Banh  vs.  Plimpton,  17  Pick.  159,  28 
Am.  Dec.  286,  where  an  agent  had  lent  the  money  of  his  principal 
to  his  private  creditor,  who  appropriated  it  to  the  payment  of  the 
debt,  that  the  principal  could  not  recover  it,  the  creditor  not  know- 
ing at  the  time  of  the  loan  that  the  money  belonged  to  the  princi- 
pal. The  creditor  had  the  right  to  secure  his  private  debt,  and 
being  money  having  no  ear  mark,  it  did  not  stand  on  the  same 
ground  as  chattels.  A  party  is  not  bound  to  inquire  into  the  author- 
ity of  a  person  from  whom  he  receives  money  in  payment  of  a  debt, 
for  a  different  doctrine  would  be  productive  of  great  mischief.  In 
that  case  as  in  this,  there  was  no  privity  between  the  parties,  and 
the  equities  were  much  stronger  than  here. 

Exceptions  sustained. 


206  Cases  on  Agency.  [Book  I 

VI. 

THE   EESTJLT8   OP   EATIFICATIOir. 

1.     Between    Principal    and    Agent,' 


(13    Bush,   526,   26    Am.   Eep.   211.) 

BANK    OF    OWENSBORO  vs.   WESTERN    BANK. 

(Kentucky  Court  of  Appeals,  September,  1877. J 

Plaintiff  bank  requested  defendant  bank  to  loan  some  money  for 
it  on  good  notes.  Defendant  therefore  loaned  15,000  to  one  Atwood 
on  his  note  secured  by  stock  of  the  Bank  of  Louisville.  That  bank 
claimed  a  lien  on  the  stock,  of  which  defendant  informed  plaintiff, 
but  also  informed  plaintiff  that  the  Bank  of  Louisville  had  agreed 
to  release  the  lien.  On  this  information,  plaintiff  accepted  the 
note  and  the  stock  as  collateral,  but,  having  brought  suit  against 
the  Bank  of  Louisville  to  compel  a  transfer  of  the  stock,  waa 
defeated,  and  the  lien  of  the  Louisville  bank  was  held  prior  to 
plaintiff's.  Atwood,  in  the  meantime,  had  failed,  and  plaintifl 
not  being  able  to  collect  from  him,  brought  this  action  against 
defendant,  charging  it  with  negligence  in  making  the  loan.  Judg- 
ment below  for  defendant,  and  plaintiff  appealed. 

James  S,  Fir  He,  O.  W.  Carufhand  Thomas  i^eet?,  for  appellant. 

Muir,  Bijur  &  Davie,  for  appellee. 

OoFER,  J.  (After  stating  the  facts).  The  only  grounds  urged  for  a 
reversal  is,  that  the  court  erred  in  instructing  the  jury  in  respect 
to  the  alleged  ratification.  The  evidence  showed,  without  contra- 
diction, that  before  the  appellant  received  the  note  and  collaterals, 
and  brought  suit  against  Atwood  and  the  Bank  of  Louisville,  it  knew 
that  the  latter  claimed  a  lien  on  the  stock  pledged  to  secure 
Atwood's  note  for  an  amount  exceeding  its  value.  But  also  showed 
that  the  appellee's  cashier  informed  the  appellant,  that  before  the 
loan  was  made  the  Bank  of  Louisville  agreed  to  release  its  lien,  or, 
what  was  the  same  thing,  to  transfer  the  stock  on  its  books  into 
aj)pellant'8  name. 

That  the  appellee's  cashier  knew,  before  he  made  the  loan,  that  the 
Bank  of  Louisville  had  a  lien  on  its  stock  for  debts  due  the  bank  by 
the  holders  thereof,  and  that  Atwood  was  then  indebted  to  the  bank 

•  See  also  Hazard  va.  Spears,  ante,  p.  183. 


Chap.  V  ]  Bank  vs.  Bank.  207 

in  a  sum  greatly  exceeding  tlie  value  of  the  stock,  was  not  at  any 
time  disputed,  the  sole  matter  in  dispute  being  whether  it  had 
agreed  to  waive  its  lien  when  called  on  by  Hurler  before  he  made 
the  loan.  That  question  was  never  finally  settled  until  the  judg- 
ment in  favor  of  the  Bank  of  Louisville  was  rendered. 

Upon  this  evidence  the  court  instructed  the  jury  that  if  the 
appellee  fairly  and  fully  communicated  to  the  appellant  all  the 
facts  and  circumstances  connected  with  the  loan  ivhich  were  known 
to  the  appellee  or  its  agent,  Hurler,  and  that  the  appellant  knew  of 
the  insolvency  of  Atwood  and  the  claim  asserted  by  the  Bunk  of 
Louisville  and  thereafter  adopted  the  transaction,  and  received  the 
note  and  collaterals  and  treated  them  as  its  own,  the  law  was  for 
the  appellee,  although  it  might  have  been  guilty  of  such  negligence 
as  would  otherwise  have  rendered  it  liable. 

The  doctrine  that  if  an  agent  has,  by  a  deviation  from  his  orders, 
or  by  any  other  misconduct  or  omission  of  duty,  become  responsi- 
ble to  his  principal  for  damages,  he  will  be  discharged  therefrom 
by  the  ratification  of  his  acts  or  omissions  by  the  principal,  if  made 
with  a  full  knowledge  of  all  the  facts,  is  elementary.  But  the 
instructions  given  in  this  case  went  further,  and  held  that  if  the 
principal,  at  the  time  of  accepting  the  note  and  collaterals,  knew 
all  the  facts  touching  the  loan  and  affecting  the  value  of  the 
security,  which  ivere  then  known  to  the  agent,  and  with  such  knowl- 
edge received  them  and  treated  them  as  its  own,  the  agent  was  dis- 
charged from  liability.  We  have  examined  many  authorities,  both 
elementary  and  judicial,  in  which  the  doctrine  of  ratification,  as 
between  principal  and  agent,  is  discussed,  but  we  have  not  found 
one  which  considered  the  good  faith  of  the  agent  as  an  element  in 
deciding  whether  or  not  there  had  been  a  ratification;  but,  on  the 
contrary,  whenever  the  good  faith  of  the  agent  has  elicited  remarks, 
it  has  been  to  the  effect  that  it  could  have  no  weight  in  the  decision 
of  this  question.  "Indeed,  in  all  such  cases  the  question  is  not 
whether  the  party  (agent)  has  acted  from  good  motives  and  with- 
out fraud,  but  whether  he  has  done  his  duty  and  acted  according 
to  the  confidence  reposed  in  him."     Story  on  Agency,  sec.  192. 

Nor  do  we  find  any  authority  for  exonerating  a  delinquent  agent 
from  liability  if  he  communicates  to  the  principal  all  the  facts 
known  to  him  at  the  time,  and  the  principal  ratifies  the  delinquency, 
and  it  afterwards  turns  out  that  the  facts  as  communicated  were 
not  the  real  facts  of  the  case.  In  such  a  case  the  assumed  condi- 
tion is  not  that  claimed  to  have  been  ratified. 


208  Cases  ok  xIgeix^cy.  [Book  I 

It  was  the  dnty  of  the  appellee  to  loan  appellants  money  on  good 
Becnrity,  or  such  as  a  person  of  common  prudence  and  skill  in 
business  would  have  esteemed  good.  It  did  loan  it  upon  a  security 
confessedly  sufiScient  if  unincumbered,  but  which,  as  the  event  has 
proved,  was  incumbered  to  its  full  value,  and  therefore  was  no 
security  at  all.  The  appellee,  through  its  cashier  (for  whose  acts 
we  assume  for  the  present  it  was  liable),  represented  that  the  stock 
was  not  in  lien  to  the  Bank  of  Louisville;  in  other  words,  that  the 
security  was  good.  To  know  whether  the  representation  was  true 
was  necessary  to  enable  the  appellant  to  make  an  election.  It  is 
true  it  knew  that  the  Bank  of  Louisville  asserted  a  lien,  but 
whether  that  lien  was  superior  to  the  appellant^  or  had  been 
waived  as  appellee  represented,  it  did  not  and  could  not  know  until 
the  dispute  was  settled. 

We  have,  therefore,  a  case  in  which,  when  the  alleged  ratification 
was  made,  both  the  principal  and  agent  were  necessarily  ignorant 
of  the  most  material  fact  in  the  whole  case,  and  consequently  there 
could  not  have  been  such  a  ratification  as  would  release  the  agent 
from  liability  if  its  conduct  had  been  such  that  it  was  otherwise 
liable.  The  gravamen  of  the  appellant's  complaint  is,  that  the 
appellee  negligently  failed  to  take  sufficient  security  for  the  loan; 
and  the  defense  is,  that  the  alleged  negligence  has  been  ratified; 
and  yet  the  uncontradicted  evidence  is,  that  at  the  time  of  the  sup- 
posed ratification  it  was  not  known  that  there  had  been  the  slightest 
negligence  or  that  the  security  was  insufficient.  It  was  not  the 
act  of  making  the  loan  that  needed  to  be  ratified;  that  was  expressly 
authorized.  Nor  did  the  acceptance  of  the  bank  stock  as  security 
need  ratification. 

The  stock  was  confessedly  worth  more  than  the  loan.  That 
which  needed  ratification  was  the  acceptance  of  the  stock  subject 
as  it  was  to  the  lien  of  the  Bank  of  Louisville  as  security  for  the 
loan.  If,  as  the  appellee  affirmed,  it  was  not  subject  to  the  asserted 
lien,  there  had  been  no  negligence,  and  there  was  nothing  to 
ratify.  Whether  it  was  subject  to  that  lien  was  never  known  until 
the  suit  to  test  the  question  was  decided;  and  then,  and  not  until 
then,  did  the  appellant  obtain  a  knowledge  of  the  facts  necessary 
to  make  an  election  whether  to  adopt  or  repudiate  the  acts  of  its 
agents. 

We  have  found  no  case,  the  facts  of  which  are  sufficiently  like 
the  facts  of  this,  to  make  the  decision  rendered  a  controlling 
precedent  in  this  case;  but  assuming  the  two  fundamental  rules  of 


Chap.  V]  Bank  vs.  Bank.  209 

the  law  of  agency,  (1)  that  when  the  agent  has  deviated  from  hia 
duty  he  becomes  liable  to  his  principal  for  sncli  losses  as  are  the 
direct  and  natural  consequence  of  such  deviation,  whether  his 
motives  were  good  or  bad;  and  (2)  that  he  is  only  released  from 
that  liability  when  the  principal,  with  a  knowledge  of  all  the  facts, 
ratifies  his  departure  from  his  duty,  and  we  think  there  can  be  no 
doubt  of  the  correctness  of  the  conclusion  we  have  reached. 

There  was  not  only  no  evidence  that  the  appellant  knew  at  the 
time  of  the  alleged  ratification  that  the  appellee  had  taken  insuflicient 
security,  but,  on  the  contrary,  the  evidence  was  nncontradicted  and 
conclusive  that  it  did  not,  and  there  was  therefore  no  evidence 
upon  which  to  base  an  instruction  on  the  subject  of  ratification. 

None  of  the  cases  cited  by  appellee's  counsel  are  like  this.  We 
cannot  undertake  to  review  them  one  by  one,  and  point  out  the 
distinction  between  them  and  this  case;  but  an  examination  of  them 
will  show  that  in  every  one  in  which  the  agent  was  held  to  be  dis- 
charged from  liability  for  deviations  from  orders  or  duty,  the  prin- 
cipal knew  at  the  time  of  the  ratification  that  the  agent  had  not 
done  his  duty,  whereas,  in  this  case,  as  we  have  already  seen,  the 
appellant  did  not  and  could  not  know  that  the  appellee  had  not 
taken  ample  security  until  it  was  decided  that  the  Bank  of  Louis- 
ville had  not  waived  its  lien  on  the  stock.  This  conclusion  is  sus- 
tained by  the  cases  of  Banhof  St.  Marys  vs.  ('alder,  3  Strobh.  403; 
Walher  vs.  Walker,  5  Heisk.  425;  and  by  Wharton  on  Agents  and 
Agency,  §  67. 

(Omitting  a  point  decided  not  to  be  in  issue.) 

If,  in  view  of  the  character  and  standing  of  Atwood  at  the  time 
the  loan  was  made,  the  knowledge  the  appellee  (or,  what  is  the 
same  thing,  its  cashier)  had  of  the  lien  on  the  collaterals  given  to 
the  Bank  of  Louisville  by  its  charter,  what  took  place  between  the 
appellee's  cashier  and  the  ofiicers  of  the  Bank  of  Louisville,  and 
his  information  as  to  Atwood's  indebtedness  to  it,  the  loan  would 
not  have  been  made  on  the  security  taken  by  a  person  of  ordinary 
prudence  and  skill  in  banking,  the  appellee  is  liable,  otherwise  it 
is  not. 

Judgment  reversed,  and  cause  remanded  for  a  new  trial  upon 
principles  not  inconsistent  with  this  opinion. 

To  the  petition  of  counsel  for  appellee  for  a  rehearing.  Judge 
CoFER  delivered  the  following  response  of  the  court: 

We  have  carefully  re-examined  the  grounds  upon  which  the 
14 


210  Cases  on  Ageistcy.  [Book  I 

opinion  already  delivered  herein  is  based,  and  the  anthorities  relied 
on  by  the  learned  counsel  for  the  appellee  to  show  that  the  conclu- 
sion then  reached  was  erroneous,  but  have  failed,  to  detect  any  error 
in  the  reasoning  by  which  we  reached  that  conclusion,  or  any  con- 
flict between  the  opinion  and  the  cases  cited  by  counsel.  We  have, 
however,  concluded  that  one  portion  of  the  opinion  was  not  neces- 
sary to  a  decision  of  this  case,  and  it  has  been  stricken  out.  We 
said  in  the  ojDinion  that  we  could  not  undertake  to  review  all  the 
cases  cited  by  counsel,  and  point  out  the  distinction  between  them 
and  this  case,  and  therefore  contented  ourselves  with  saying  that 
there  was  such  a  distinction.  In  the  petition  counsel  have  cited 
only  a  portion  of  the  cases  cited  on  the  hearing,  and  we  deem  it 
due  to  them,  as  well  as  ourselves,  to  indicate  the  distinction  between 
those  cases  and  this  case.  The  cases  cited  are  Courcier  vs.  Ritter, 
4  Wash.  549;  Cairnes  vs.  Bleeher,  12  Johns.  300;  Pickett  vs.  Pear- 
son, 17  Vt.  470;  and  Hanhs  vs.  Drahe,  49  Barb.  202. 

The  facts  in  Courcier  vs.  Ritter  were  these:  In  October,  1813, 
Eitter,  a  merchant  of  Philadelphia,  consigned  to  Courcier,  a 
merchant  of  Bordeaux,  forty  bags  of  coffee,  with  instruction  to  sell 
immediately  on  arrival,  and  forward  to  him  by  the  same  vessel  the 
articles  mentioned  in  the  letter  of  advice.  The  coffee  was  not 
landed  until  March,  1813,  but  Courcier  had  previously  written  that 
as  soon  as  it  was  landed  he  should  use  his  best  endeavors  to  effect 
an  advantageous  sale,  and  would  ship  by  the  return  of  the  vessel 
the  articles  ordered.  April  28  he  again  wrote  to  Ritter  as  follows: 
"  I  have  not  been  able  yet  to  procure  a  sale  of  your  coffee,  but  no 
exertions  will  be  wanted  to  avail  myself  of  the  first  favorable  change 
in  the  market."  Courcier  did  not  again  write  to  Eitter  until  May 
21, 1815,  when  he  inclosed  an  account  of  sales,  by  which  it  appeared 
that  the  coffee  had  not  sold  for  enough  to  reimburse  the  advance 
made  by  the  shipment  of  articles  ordered  by  Eitter,  and  the  suit 
was  brought  to  recover  the  balance  due  thereon.  Eitter  defended 
on  the  ground  that  his  instructions  to  sell  immediately/  had  not 
been  obeyed,  and  lie  had  been  damaged  by  the  holding  of  the  coffee 
by  Courcier;  to  which  Courcier  replied,  that  by  accepting  the 
return  cargo  (which  was  procured  by  an  advance  made  by  him,  and 
was  not  purcliased  with  the  proceeds  of  the  outward  cargo),  and 
by  not  promptly  objecting  to  the  alleged  violation  of  his  orders,  of 
which  the  letter  of  April  28  informed  him,  Eitter  had  ratified  what 
was  done. 


Chap.  V]  Bakk  vs.  Bank.  211 

In  considering  this  part  of  the  defense,  Mr.  Justice  "Washik-qtok 
said;  "  If  the  principal,  being  informed  by  his  agent  pf  the  devia- 
tion from  his  orders,  makes  no  objection  to  his  conduct,  the  law 
construes  his  silence  into  a  tacit  recognition  of  the  act  or  omission, 
against  which  he  will  not  be  permitted  afterwards  to  complain. 
The  reason  is  obvious.  He  shall  not  by  his  silence  place  his  agent 
in  the  predicament  of  losing  all  the  gain  which  may  result  from 
his  well-intended  disobedience,  and  yet  be  exposed  to  sustain  the 
loss  which  a  mistaken  judgment  or  unforseen  circumstances  may 
produce." 

This  principle  we  recognize  fully.  "  If,'*  says  the  learned  judge, 
**  the  principal,  being  informed  ly  Ms  agent  of  the  deviation  from 
his  orders  makes  no  objection  to  his  conduct,  the  law  construes 
his  silence  into  a  tacit  recognition,"  etc.  But  suppose  he,  as  the 
appellee  did  in  this  case,  fails  to  notify  his  principal  that  he  has 
deviated  from  his  orders,  what,  then,  does  the  law  imply  from  the 
silence  of  the  principal?  The  same  learned  judge,  in  the  same 
case,  referring  again  to  the  letter  of  April  28th,  says:  "  He  does 
not  say  that  he  has  declined  selling  on  account  of  the  low  price  of 
coffee,  which  would  subject  his  correspondent  to  a  loss,  but  that 
the  sale  of  it  is  impracticable.  ♦  *  *  He  discloses  no  breach 
of  orders  whatever,  if  the  fact  was  that  no  sales  could  be  made; 
and  consequently  the  defendant's  silence  had  no  known  violation 
of  duty  to  recognize  or  ratify.'' 

Such  is  precisely  the  case  here.  The  appellee  did  not  disclose 
that  it  had  violated  its  orders,  but  affirmed  that  it  had  not,  and 
"there  was  no  known  violation  of  duty  to  recognize  or  ratify." 

Cairnes  vs.  Bleeker  is  a  very  long  case,  but  may,  for  the  purposes 
of  this  case,  be  briefly  stated  as  follows:  Bleeker  received  from 
Cairnes  certain  goods  m&rked  M.  Gillett,  and  was  instructed  to 
deliver  them  to  Gillett  whenever  he  deposited  with  him  (Bleeker) 
property  amply  sufficient  to  secure  certain  drafts  drawn  by  Gillett 
on  Bleeker  in  favor  of  Cairnes.  In  July,  after  the  goods  were 
deposited  with  Bleeker,  he  wrote  to  Cairnes,  informing  him  that  a 
certain  quantity  of  ashes  had  been  deposited  by  Gillett  to  secure 
the  drafts,  and  that  the  goods  received  for  Gillett  had  been  deliv- 
ered to  him.  The  ashes  then  held  by  Bleeker  seem  to  have  been 
understood  by  both  parties  not  to  be  *' amply  sufficient  to  secure 
the  drafts,"  for  in  the  same  letter,  informing  Cairnes  of  the  deliv- 
ery of  the  goods  to  Gillett,  he  was  notified  that  Gillett  promised 


213  Cases  on  Age:s"ct.  [Book  I 

more  ashes  by  the  next  trip  of  the  vessel  by  which  the  first  lot  was 
shipped. 

In  October  Cairnes  wrote  to  inquire  of  Bleaker  what  other  prop- 
erty, besides  the  ashes  shipped  as  above  stated,  Gillett  had  placed 
in  his  hands  when  he  took  away  the  last  of  the  goods.  November 
1st  Bleaker  informed  Cairnes  that  Gillett  had  deposited  no 
property  besides  the  ashes  already  shipped.  On  the  12th  of  the 
following  February  Cairnes  informed  Bleaker  by  letter  that  he 
should  look  to  him  for  the  value  of  the  goods  left  with  him,  and 
which  he,  in  violation  of  his  instructions,  had  delivered  to  Gillett 
without  the  required  deposit  of  "  property  amply  sufficient  to 
secure  the  drafts.'*  That  letter  was  not  answered,  and  August  3d 
following,  formal  demand  was  made  upon  Bleeker  for  the  goods, 
which  he  refused  to  deliver. 

In  commenting  on  these  facts  the  court  said:  "On  the  18th  of 
July,  1811,  the  defendant  informed  the  plaintiff  that  he  had,  on 
the  17th  day  of  that  month,  delivered  to  Gillett  the  last  parcel  of  the 
goods,  and  that  he  (defendant)  had  received  from  him  twenty-six 
casks  of  ashes.  *  *  *  The  plaintiff  rests  satisfied  until  October  the 
29th,  and  tlien,  for  the  first  time,  asks  for  information  what  other 
property  Gillett  had  placed  in  his  hands  when  ha  took  the  last  of 
the  goods.''  The  duty  and  instructions  of  Bleeker  were  not  to 
deliver  the  goods  to  Gillett  until  he  should  deposit  with  him 
**  property  amply  sufficient  to  secure  the  drafts."  Those  instruc- 
tions were  violated,  and  Cairnes  was  distinctly  informed  of  the  fact 
by  letter  dated  July  18,  and  with  that  information  he  remained 
silent  until  October  29.     It  was  held  he  could  not  recover. 

The  statement  of  facts  in  Pickett  vs.  Pearson  is  very  long;  but 
the  point  decided  in  the  case  may  be  shown  by  the  following  state- 
ment: The  defendant  undertook  to  collect  money  for  the  plaintiff 
who  resided  in  Vermont,  from  debtors  residing  in  the  then  terri- 
tory of  Wisconsin,  and  was  instructed  to  receive  from  one  of  them 
only  gold  and  silver  or  bank-notes  at  par  in  Vermont;  but  the 
defendant  disobeyed  his  orders,  and  received  for  a  portion  of  the 
debt  bank-bills  not  worth  more  than  twenty  cents  on  the  dollar, 
and  for  the  residue  he  took  the  note  of  the  debtor.  On  his  return 
he  delivered  the  bills  and  note  to  the  plaintiff,  who  said  he  did  not 
know  the  value  of  the  bills,  but  would  see  what  he  could  do  with 
them.  He  received  them  November  14,  and  during  the  ensuing 
winter  learned  they  were  worth  only  twenty  cents  on  the  dollar, 


Chap.  V]  Bank  vs.  Bank.  213 

and  as  soon  as  he  ascertained  their  value  he  notified  the  defendant, 
and  requested  him  to  make  up  the  money  as  good  as  the  plaintifE 
had  instructed  him  to  receive,  but  he  did  not  offer  to  return  the 
bills  until  after  he  had  sued  the  defendant,  and  it  does  not  appear  that 
he  ever  offered  to  return  the  note  of  hand  taken  by  the  defendant 
for  a  part  of  the  debt.  The  defendant  at  the  time  of  receiving  the 
bank-bills  from  Chickering,  the  debtor,  took  from  him  a  guaranty 
with  surety  that  the  bills  were  good,  and  that  also  was  delivered  to 
the  plaintiff  with  the  bills,  and  was  retained  by  him  until  after  suit 
was  commenced. 

In  commenting  on  the  facts,  the  court  said:  "It  seems  very 
plain  to  us  that  the  plaintiffs  taking  the  money  and  guaranty,  and 
keeping  them  for  months,  fully  exonerated  the  defendant.  The 
plaintiff  received  of  the  defendant  all  that  the  defendant  received 
of  Chickering,  and  all  that  belonged  to  him,  under  protest,  to  be 
sure,  that  he  would  see  what  could  be  done  with  the  money.  How 
long  a  time  is  to  be  allowed  him  to  ascertain  that  fact?  It  could 
hardly  be  pretended  that  two  or  three  months  were  necessary  to 
ascertain  that  fact.  It  could  just  as  well  be  done  in  as  many 
weeks,  and  very  likely  in  as  many  days.*' 

The  case  was  made  to  turn  upon  the  delay  to  return  the  bills 
after  the  plaintiff  had  learned  they  were  not  such  as  he  had  directed 
to  be  received.  He  knew  then  that  his  instructions  had  been 
violated,  and  then,  and  not  until  then,  or  until  he  might,  by 
proper  diligence,  have  learned  the  fact,  did  he  become  bound  by  a 
ratification. 

The  case  of  Hanks  vs.  DraJce  is  thus  correctly  stated  by  counsel: 
**  The  principal  employed  the  agent  to  sell  stocks  for  him  at  a 
particular  time.  The  agent  sold  them  prematurely,  whereby  loss 
was  occasioned  to  the  principal.  The  agent  rendered  an  account 
to  the  principal  of  what  he  had  done.  The  principal  remained 
silent  for  four  months,  then  received  the  proceeds  of  the  sale,  and 
sued  the  agent  for  damages  for  the  difference. 

"The  court  held  that  the  right  of  action  was  lost  by  ratification, 
saying:  'When  they  sold  the  stock  and  rendered  the  account,  it 
was  the  duty  of  the  plaintiff  to  have  dissented  at  once.  Had  the 
plaintiff  so  dissented,  the  defendant  could  have  replaced  the  stock 
without  loss,'  and  saying  further:  '  The  plaintiff,  however,  claims 
that  such  acts  are  not  a  ratification  unless  he  had  full  knowledge 
of  his  rights.  I  do  not  understand  such  to  be  the  rule;  but  the 
party  must  have  full  knowledge  of  the  facts  and  circumstances  of 


214  Cases  on  Agency.  [Book  I 

the  transaction/"     Here  was  four  months  of  silence  after  the  prin- 
cipal knew  his  instructions  had  been  violated. 

It  thus  appears  that  between  each  of  the  cases  cited  in  the 
petition  (and  we  assume  they  are  as  pertinent  as  any  counsel  have 
been  able  to  quote)  and  the  case  at  bar  there  is  the  clear  and 
marked  distinction  that  in  the  former  the  principal  knew  at  the 
time  of  the  alleged  ratification  that  his  instructions  had  been  dis- 
obeyed, while  in  the  latter  the  principal  not  only  did  not  know 
that  his  orders  had  not  been  obeyed,  but  the  agent  insisted  there 
had  been  no  disobedience.     (Omitting  another  point  not  in  issue.) 

But  we  are  referred  to  our  opinion  in  Trigg  vs.  The  Second 
National  Banky  as  inconsistent  with  the  opinion  in  this  case.  The 
following  extract  from  the  opinion  in  that  case  will  be  sufficient  to 
distinguish  it  from  this  and  to  show  that  it  belongs  to  the  same 
class  with  the  cases  cited  by  counsel,  and  which  we  have  just 
reviewed.  We  said:  **The  evidence  showed  that  the  note  was 
delivered  to  appellants  in  December,  and  that  they  then  knew  the 
facts  in  regard  to  the  financial  condition  of  the  parties  to  the  note 
and  the  value  of  the  collaterals."  In  other  words,  the  appellants 
in  that  case  knew,  when  they  accepted  the  securities  taken  by  the 
appellee,  the  value  of  those  securities,  and  if  their  agent  had 
deviated  from  its  duty,  they  then  knew  the  facts. 

The  petition  must  be  overruled. 

Note. — See,  also,  Walker  vs.  Walker,  5  Heisk.  (Tenn.)  425;  Rathbun  vs. 
Steamboat  Co.,  76  N.  Y.  376,  32  Am.  Rep.  821;  Trigg  vs.  Jones,  46  Minn. 
277.  In  the  case  last  cited  the  court  said:  "  There  is  no  doubt  that  the 
general  rule  is  that,  by  a  ratification  of  an  unauthorized  act,  the  principal 
absolves  the  agent  from  all  respousibility  for  loss  or  damage  growing  out 
of  the  unauthorized  transaction,  and  that  thenceforward  the  principal 
assumes  the  responsibility  of  the  transaction,  with  all  its  advantages  and 
all  its  burdens.  Neither  is  there  any  question  but  that,  where  the  rights 
and  obUgations  of  third  persons  may  depend  on  his  election,  the  principal  is 
bound  to  act  and  give  notice  of  his  repudiation  or  disaffirmance  of  the 
unauthorized  act  at  once,  or  at  least  within  a  reasonable  time  after  knowl- 
edge of  the  act,  and,  if  he  does  not  so  dissent,  his  silence  will  afford  con- 
clusive evidence  of  his  approval.  Such  a  rule  is  necessary  to  protect  the 
rights  of  third  parties  who  have  dealt  with  the  agent.  If  the  principal, 
after  knowledge,  remains  entirely  passive,  it  is  but  just,  when  the  protec- 
tion of  third  parties  require  it,  to  presume  that  what,  upon  knowledge,  he 
has  failed  to  repudiate,  he  has  tacitly  confirmed.  But  it  is  apparent  that 
the  reasons  for  such  a  rule  do  not  apply  with  equal  force  in  favor  of  the 
agent  himself,  who  has  wrongfully  committed  the  unauthorized  act.  Con- 
sequently mere  passive  inaction  or  silence,  which  would  amount  to  an 
implied  ratification  in  favor  of  third  parties,  might  not  amount  to  that  in 


Chap.  V  ]  Bank  vs.  Bank.  215 

favor  of  the  agent,  so  as  to  absolve  him  from  liability  to  his  principal  for 
loss  or  damage  resulting  from  the  unauthorized  act,  especially  if  such  inac- 
tion or  failure  to  immediately  disaffirm  was  induced  by  the  assurances  or 
persuasion  of  the  agent  himself.  Nor  in  this  case  does  the  affirmative 
action  of  the  plaintiff,  after  knowledge  of  the  delivery  of  the  deed,  in  taking 
part  in  the  preliminary  steps  for  the  organization  of  the  contemplated  stock 
company,  of  itself  amount  to  a  ratification  of  the  unauthorized  act.  Such 
steps  were  right  in  the  line  of  the  original  agreement  between  the  parties  and 
were  designed  to  carry  it  into  effect,  induced,  as  such  action  probably  was, 
by  the  assurances  of  Jones  (the  agent)  that  the  enterprise  would  b:  ill  go  on, 
and  plaintiff  get  his  stock,  it  really  amounted  to  nothing  more  than  an 
effort  on  plaintiff's  part,  after  knowledge  of  Jones'  deviation  from  his 
instructions,  to  avoid  loss  thereby,  which  is  not  such  a  ratification  as  will 
relieve  the  agent.  Mechem,  Ag,  §  173.  Upon  proof  that  Jones'  act  was 
without  original  authority,  the  burden  was  upon  him  to  show  such  a  subse- 
quent ratification  as  would  relieve  him  from  liability.  The  court  has  not 
found  any  such  ratification,  and,  in  our  opinion,  under  the  evidence,  he 
was  justified  in  finding,  aa  he  in  effect  does,  that  there  was  none." 


2.    Between  Principal  and  the  Other  Partjf, 


(14  Wisconsin,  686.) 

DODGE    vs.    HOPKINS. 

(Supreme    Court   of   Wisconsin,   June,   1861.) 

This  was  an  action  to  recover  installments  dne  npon  a  written 
contract  under  seal  by  which  Dodge  had  agreed  to  sell  Hopkins 
certain  lands  which  the  latter  agreed  to  buy  and  pay  for  in  given 
installments,  one  of  which  was  paid  to  the  agent  at  the  date  of  the 
contract.  The  contract  was  executed  on  the  part  of  Dodge  by  an 
agent  who  assumed  to  act  under  a  letter  of  authority  from  Dodge 
and  his  wife  which  had  been  executed  in  Spain.  It  was  objected 
on  the  trial  that  the  power  of  attorney  was  not  so  executed  as  to 
authorize  the  act  of  the  agent.  There  was  no  evidence  that  defend- 
ant had  at  any  previous  time  sought  to  repudiate  the  contract  on 
this  ground,  but  he  sought  to  file  a  supplemental  answer  showing 
that  since  the  commencement  of  suit  he  had  tendered  the  money 
to  an  alleged  agent  of  plaintiff  and  demanded  the  deed  agreed  upon. 
The  supplemental  answer  was  rejected.  Judgment  for  plaintiH 
and  defendant  appealed. 


216  Cases  Oif  Ageihgy.  [Book  1 

J.  G.  Hopkins,  for  appellant. 

Abbott,  Gregory  <&  Finney,  for  respondent. 

Dixon,  0.  J.  ,  (After  deciding  that  the  supplemental  answer 
was  properly  rejected  because  it  did  not  appear  that  the  agents  had 
authority  to  accept  the  money  or  make  the  conveyance,  and  that 
the  power  of  attorney  was  not  sufficient  to  authorize  the  agent  to 
execute  the  contract  on  the  part  of  the  plaintifE  because  as  the 
power  from  Dodge  and  his  wife  was  joint,  it  did  not  authorize  a 
sale  of  the  separate  property  of  Dodge  alone.)  We  are  next  to 
ascertain  the  effect  of  this  want  of  authority  upon  the  rights  of  the 
defendant.  It  is  very  clear,  in  the  present  condition  of  the  case, 
that  the  plaintiff  was  not  bound  by  the  contract,  and  that  he  was 
at  liberty  to  repudiate  it  at  any  time  before  it  had  actually  received 
his  sanction.  Was  the  defendant  bound?  And  if  he  was  not, 
could  the  plaintiff,  by  his  sole  act  of  ratification,  make  the  contract 
obligatory  upon  him?  We  answer  both  these  questions  in  the 
negative.  The  covenants  were  mutual — those  of  the  defendant 
for  the  payment  of  the  money  being  in  consideration  of  that  of  the 
plaintiff  for  the  conveyance  of  the  lands.  The  intention  of  the 
parties  was  that  they  should  be  mutually  bound — that  each  should 
execute  the  instrument  so  that  the  other  could  set  it  up  as  a  bind- 
ing contract  against  him,  at  law  as  well  as  in  equity,  from  the 
moment  of  its  execution. 

In  such  cases  it  is  well  settled,  both  on  principle  and  authority, 
that  if  either  party  neglects  or  refuses  to  bind  himself,  the  instru- 
ment is  void  for  want  of  mutuality,  and  the  party  who  is  not 
bound  cannot  avail  himself  of  it  as  obligatory  upon  the  other. 
Townsend  vs.  Corning,  23  Wend.  (N.  Y.)  435;  and  Toicnsend  vs. 
Hubbard,  4  Ilill,  (N.  Y.)  351,  and  cases  there  cited.  The  same 
authorities  also  show  that  where  the  instrument  is  thus  void  in  its 
inception,  no  subsequent  act  of  the  party  who  has  neglected  to 
execute  it,  can  render  it  obligatory  upon  the  party  who  did  execute, 
without  his  assent.  The  opinion  of  Judge  Bronson  in  the  first 
named  case  is  a  conclusive  answer  to  all  arguments  to  be  drawn 
from  the  subsequent  ratification  of  the  party  who  was  not  origi- 
nally bound.  In  that  case,  as  in  this,  the  vendors  had  failed  to 
bind  themselves  by  the  agreement.  He  says:  "It  would  be  most 
extraordinary  if  the  vendors  could  wait  and  speculate  upon  the 
market,  and  then  abandon  or  set  up  the  contract  as  their  own 
interests  might  dictate.     But  without  any  reference  to  prices,  and 


Chap.  V]  Dodge  vs.  Hopkiks.  217 

whetlicr  the  delay  was  long  or  short,  if  this  was  not  the  deed  of 
the  vendee  at  the  time  it  was  signed  by  himself  and  Baldwin  (the 
agent),  it  is  impossible  that  the  vendors,  by  any  subsequent  act  of 
their  own  without  his  assent,  could  make  it  his  deed.  There  is,  I 
think,  no  principle  in  the  law  which  will  sanction  such  a  doctrine.** 
The  only  point  in  which  the  facts  in  that  case  differ  materially 
from  those  here  presented,  is  that  no  part  of  the  purchase  money 
was  advanced  to  the  agent.  But  that  circumstance  cannot  vary 
the  application  of  the  principle.  The  payment  of  the  money  to  the 
agent  did  not  aSect  the  validity  of  the  contract,  or  make  it  bind- 
ing upon  the  plaintiff.  He  was  at  liberty  to  reject  the  money,  and 
his  acceptance  of  it  was  an  act  of  ratification  with  which  the 
defendant  was  in  no  way  connected,  and  which,  although  it  might 
bind  him,  imposed  no  obligation  upon  the  defendant  until  he 
actually  assented  to  it.  It  required  the  assent  of  both  parties  to 
give  the  contract  any  vitality  or  force. 

I  am  well  aware  that  there  are  dicta  and  observations  to  be  found 
in  the  books,  which,  if  taken  literally,  would  overthrow  the  doctrine 
of  the  cases  to  which  I  have  referred.  It  is  said  in  Laiorence  vs. 
Taylor,  5  Hill,  (N.  Y.)  113,  that  "such  adoptive  authority  relates 
back  to  the  time  of  the  transaction,  and  is  deemed  in  law  the  same 
to  all  purposes  as  if  it  had  been  given  before."  And  in  Neiifton  vs. 
Bronson,  3  Kern.  (N.  Y.)  594  (67  Am.  Dec.  87),  the  court  say: 
**  That  a  subsequent  ratification  is  equally  effectual  as  an  original 
authority,  is  well  settled,**  Such  expressions  are,  no  doubt,  of 
frequent  occurrence,and  although  they  display  too  much  carelessness 
in  the  use  of  language,  yet  if  they  are  understood  as  aj^plicable  only 
to  the  cases  in  which  they  occur,  they  may  be  considered  as  a  correct 
statement  of  the  law.  The  inaccuracy  consists  in  not  properly 
distinguishing  between  those  cases  where  the  subsequent  act  of 
ratification  is  put  forth  as  the  foundation  of  a  right  in  favor  of  the 
party  who  has  ratified,  and  those  where  it  is  made  the  basis  of  a 
demand  against  him.  There  is  a  broad  and  manifest  difference 
between  a  case  in  which  a  party  seeks  to  avail  himself,  by  subse- 
quent assent,  of  the  unauthorized  act  of  his  own  agent,  in  order  to 
enforce  a  claim  against  a  third  person,  and  the  case  of  a  party 
acquiring  an  inchoate  right  against  a  principal  by  an  unauthorized 
act  of  his  agent,  to  which  validity  is  afterwards  given  by  the  assent 
or  recognition  of  the  principal.  Paley  on  Agenc}',  192,  note.  The 
principal  in  such  a  case  may,  by  his  subsequent  assent,  bind  him- 
self, but,  if  the  contract  be  executory,  he  cannot  bind  the  other 


218  Cases  on  Agency.  [Book  I 

party.  The  latter  may,  if  he  choose,  avail  himself  of  such  assent 
against  the  principal,  which,  if  he  does,  the  contract,  by  virtue  of 
such  mutual  ratification,  becomes  mutually  obligatory.  There  are 
many  cases  where  the  acts  of  parties,  though  unavailable  for  their 
own  benefit,  may  be  used  against  them.  It  is  upon  this  obvious 
distinction,  I  apprehend,  that  the  decisions  which  I  liave  cited  are 
to  be  sustained.  Lawrence  vs.  Taylor  and  Neidon  vs.  Bronson 
were  both  actions  in  which  the  adverse  party  claimed  rights  through 
the  agency  of  individuals  whose  acts  had  been  subsequently  ratified. 
And  the  authorities  cited  in  support  of  the  proposition  laid  down 
in  the  last  case  (  Weed  vs.  Carpenter,  4  Wend.  [N.  Y.]  219;  Episco- 
pal Society  vs.  Episcopal  Church,  1  Pick.  [Mass.]  372;  Corning  vs. 
Southland,  3  Hill,  [N.  Y.]  552;  Moss  vs.  Rossie  Le"d  lilining  Co.,  5 
Id.  137;  Clarh  vs.  Van  Riemsdyh,  9  Cranch.  [U.  S.]  153;  Willinhs 
vs.  Hollingsworth,  5  Wheat.  [U.  S.]  241),  will,  when  examined,  b.e 
found  to  have  been  cases  where  the  subsequent  assent  was  employed 
against  the  persons  who  had  given  it,  and  taken  the  benefit  of  the 
contract.        ♦        •        * 

Reversed. 

Note. — Compare  this  case  with  the  two  following.  This  case  has  been 
followed  in  later  Wisconsin  cases.  See  Atlee  vs.  Bartholomew,  (1881)  69 
"Wis.  43,  5  Am.  St.  Rep.  103,  and  note.  See  also  24  American  Law  Review, 
p.  680. 

In  Yerkes  vs.  Richards,  (1893)  153  Penn.  St.  646,  it  is  held  that  an  agree- 
ment to  sell  land  at  the  option  of  the  vendee  is  not  rendered  void  for  want 
of  mutuality  because  the  vendee  was  a  feme  covert,  and  the  agent  who 
contracted  for  her  had  no  authority  to  bind  her  thereby;  and  on  election 
and  offer  of  performance  by  such  vendee  the  contract  will  be  enforced 
against  the  vendor.     Corson  vs.  Mulvaney,  49  Pa.  St.  88,  followed. 

Notice  to  quit,  given  by  one  assuming  to  act  as  agent  for  another,  but 
having  no  authority,  cannot  be  ratified  after  the  time  when  the  notice  is  to 
operate,  so  as  to  lay  the  foundation  for  summary  pi-oceedings  under  the 
landlord  and  tenant  act.  Pickard  vs.  Perley,  (l'-64)  45  N.  H.  188,  86  Am. 
Dec.  153;  Brahn  vs.  Jersey  City  Forge  Co.,  88  N.  J.  L.  74;  Right  vs. 
Cuttrel,  5  East.  491;  Doe  vs.  Walters,  10  B.  &  C,  625;  Doe  vs.  Gokbvin, 
2  Q.  B.  143.  Conira:  Roe  vs.  Pierce,  2  Camp.  96;  Goodtitle  vs.  Woodward, 
8  B.  &  Aid.  G89. 


Chap.  V]  McClintock  vs.  Oil  Company.  219 

(146  Pennsylvania  State,  144,  28  Am.  St.  Rep.  785.) 

McCLINTOCK    vs.    SOUTH    PENN    OIL    COMPANY. 

(Supreme  Court  of  Pennsylvania,  January,  1S92.J 

One  Donaldson  entered  into  a  written  contract  to  sell  to  the 
plaintiff,  Mattie  M.  McClintock,  certain  real  estate  therein  described 
on  terms  therein  stated.  Afterwards  her  husband  agreed  to  trans- 
fer the  contract  to  the  defendant  for  $1,150,  and  he  indorsed  upon 
the  contract  a  receipt  as  follows: 

Pittsburgh,  Pa.,  December  23,  1889. 
Received  of  the  South  Penn  Oil  Company,  fifty  dollars  of  the 
purchase  money  for  the  within  contract.     The  balance  to  be  paid 
by  26th,  on  making  the  necessary  transfer,  is  to  be  eleven  hundred 
dollars.  Mattie  M.  McClintock, 

By  Alex.  McClintock. 

On  December  26,  defendant  endorsed  on  the  contract  the  neces- 
Bary  writing  for  a  formal  transfer  of  it,  and  requested  it  to  be  prop- 
erly executed  and  returned  the  next  day,  when  the  money  would 
be  paid.  The  transfer  was  properly  executed  by  McClintock  and 
wife,  and  tendered  to  defendant,  but  defendant  refused  to  accept 
it  and  pay  the  $1,100,  unless  McClintock  would  get  Donaldson  to 
make  certain  alterations  in  the  contract.  McClintock  tried  to  have 
this  done,  but  Donaldson  refused.  Plaintiff  then  offered  to  return 
to  defendant  the  fifty  dollars  paid  on  the  date  of  the  receipt,  and 
requested  defendant  to  cancel  the  assignment,  but  this  defendant 
refused  to  do,  and  notitied  Donaldson  that  it  held  the  contract  by 
assignment.  Plaintiff  not  receiving  the  payment  from  defendant, 
was  not  able  to  pay  to  Donaldson  a  payment  due  soon  after,  and 
lost  her  rights  under  the  contract.  She  brought  this  action  for 
damages,  and  recovered.     Defendant  appealed. 

Boyd  Crwurine,  Henry  Mc Sweeney,  Charles  M.  Thorpe  and  E, 
E.  Cnimrine,  for  the  appellant. 

B.  W.  Irwin,  John  W.  Donnan,  A.  Donnan,  and  M.  C. 
Acheson,  for  the  appellee. 

Mitchell,  J.  The  receipt  by  plaintiff's  husband  expressed  the 
fact  of  a  sale,  by  the  acknowledgement  of  receipt  of  part  of  the 
purchase  money,  and  fixed  the  time  and  amount  of  the  remaining 
payment.     All   the   other  terms   of  the  contract,  including  the 


220  Cases  on  Aqekcy.  [Book  1 

identification  of  the  subject  matter,  were  shown  by  the  original 
agreement  of  Donaldson,  on  which  the  receipt  was  indorsed.  The 
two  papers  thus  constituted  one  instrument,  which,  so  far  as 
appears  on  its  face,  was  a  sufficient  memorandum  in  writing  to  sat- 
isfy the  statute  of  frauds.  Its  defect  in  that  regard  was  dehors  the 
instrument  itself,  and  lay  in  the  want  of  written  authority  in  the 
husband  to  act  as  agent  for  his  wife.  Had  his  authority  been  in 
writing  at  that  time,  even  though  on  a  separate  paper,  no  question 
of  the  validity  and  binding  force  of  the  contract  could  have  arisen. 
His  action  as  agent  was,  however,  formally  ratified  and  adopted  by 
the  wife  in  writing  before  any  rescission  or  change  of  position  in 
any  way  by  the  defendant. 

The  exact  question  before  ns,  therefore,  is  whether  such  ratifica- 
tion by  the  wife,  of  its  own  force,  perfected  and  validated  the 
agent's  original  contract,  or  whether  it  still  required  acceptance  by 
the  grantee. 

No  case  precisely  in  point  has  been  found,  and  we  are  left  to 
determine  the  question  on  general  principles.  It  is  conceded  that 
a  deed  tendered  by  the  vendor,  but  refused  by  the  vendee,  will  not 
validate  a  parol  contract,  and  it  is  argued  that  the  present  case 
stands  upon  the  same  footing.  But  I  apprehend  that  the  rule  in 
question  results  from  the  common-law  requirement  that  every  writ- 
ing must  be  accepted  before  it  becomes  a  contract. 

It  is  sometimes  said,  however,  that  the  reason  a  deed  tendered  is 
ineffectual  under  the  statute  is,  that  until  such  tender  the  vendor 
was  not  bound;  the  vendee  could  not  have  held  him,  and  there 
being,  therefore,  a  want  of  mutuality  in  the  agreement,  equity  will 
not  specifically  enforce  it.  Whether  the  equitable  doctrine  of 
mutuality  has  any  proper  place  in  cases  arising  under  the  statute 
of  frauds  is  a  vexed  question  on  which  our  decisions  are  not  in 
harmony,  and  are  badly  in  need  of  review  and  authoritative  settle- 
ment. See  Tripp  vs.  Bishop,  56  Pa.  St.  424;  Meason  vs.  Kaine, 
63  Pa.  St.  335;  Sands  vs.  Arthur,  84  Pa.  St.  479;  and  the  com- 
ment upon  them  by  Judge  Eeed  in  his  treatise  on  the  statute  of 
frauds,  sec.  367.  But  whatever  the  foundation  of  the  rule,  it  is 
doubtful  if  the  case  of  ratification  of  an  agent's  act  comes  fairly 
within  it.  If  the  agent  had  been  properly  authorized,  the  contract 
would  have  bound  both  parties  in  the  first  instance,  and  the  settled 
rule  is  that  ratification  is  equivalent  in  every  way  to  plenary  prior 
authority.  The  objection  of  want  of  mutuality  is  not  good  in 
many  cases  of  dealing  with  an  agent,  for  if  he  exceeds  his  authority. 


Chap.  V]  McClintook  vs.  Oil  Company.  221 

actual  and  apparent,  his  principal  will  not  be  bound,  yet  may 
ratify,  and  then  the  other  party  will  be  bound  from  the  inception 
of  the  agreement.  The  aggregatio  mentium  of  the  parties  need 
not  commence  simnltaneonsly.  It  must  co-exist;  but  there  must 
be  a  period  when  the  question  of  contract  or  no  contract  rests  on 
the  will  of  one  party  to  accept  or  reject  a  proposition  made,  and 
this  interval  may  be  long  or  short.  The  offer,  of  course,  may  be 
revoked  or  withdrawn  at  any  time  prior  to  acceptance,  but  after 
acceptance  it  is  too  late.     The  contract  is  complete. 

If,  in  the  present  case,  the  defendants  had  written  a  letter  to 
plaintiff  stating  that  they  had  made  the  agreement  with  her  hus- 
band as  agent,  but  that  his  authority  not  being  in  writing,  they 
requested  her  to  send  them  a  written  ratification,  and  thereupon  she 
had  written  and  mailed  an  acceptance  and  ratification  of  her  agent's 
act,  there  could  bo  no  question  of  the  contract.  HainiJton  vs. 
Lycoming  Mut.  Ins.  Co.,  5  Pa.  St.  339,  and  cases  cited  in  3  Am.  & 
Eng.  Ency.  of  Law,  856,  tit.  "  Contract;*' and  13  Am.  &  Eng. 
Ency.  of  Law,  233,  tit.  "Mail."  And,  in  effect,  that  is  just  what 
the  defendant  did  here.  It  made  the  original  agreement  with  the 
husband,  evidenced  by  his  indorsement  on  the  Donaldson  contract, 
which  was  delivered  into  its  possession.  On  the  day  that  payment 
was  called  for  by  the  indorsed  agreement,  the  defendant  further 
indorsed  on  the  contract  an  assignment  by  husband  and  wife, 
which  would  be  a  written  ratification  of  the  most  formal  kind  of 
the  husband's  previous  act,  and,  as  the  jury  have  found,  delivered 
it  to  the  husband  unconditionally  for  execution  and  acknowledg- 
ment. The  defendant's  consent  to  the  contract  sued  upon  was  thus 
manifested;  and  upon  acceptance  by  plaintiff,  the  contract  became 
binding  as  a  common-law  contract  of  both  parties,  and  upon  her 
signature  it  became  a  contract  in  writing  within  all  the  require- 
ments of  the  statute.  The  objects  of  the  act,  certainty  of  subject 
matter,  precision  of  terms,  reliability  of  evidence,  and  clearness  of 
intent  of  the  land  owner,  are  all  secured,  and  we  see  no  particular 
in  which  either  the  letter  or  the  policy  of  the  statute  has  been 
violated. 

The  cases  cited  by  appellee,  though  not  decisions  on  the  precise 
point,  tend  to  sustain  the  conclusion  here  reached:  Maclean  vs. 
Dunn,  4  Bing.  722,  was  under  the  English  statute,  which  requires 
only  that  the  agent  should  be  "lawfully  authorized;"  but  the 
opinion  of  Lord  Chief  Justice  Best  illustrates  the  effectiveness  of 
ratification  as  equivalent  to  antecedent  authority.      In  our  own 


223  Cases  on  Agency.  [Book  I 

case  of  McDoioell  vs.  Simpson,  3  Watts,  129,  27  Am.  Dec.  338,  the 
opinion  of  Kennedy,  J.,  is  clearly  expressed  that  a  lease  by  an 
agent  in  excess  of  any  authority,  either  parol  or  written,  may  bo 
ratified,  but  the  ratification  to  create  a  valid  term  for  seven  yeara 
must  be  in  writing.  So  far  as  the  case  goes,  it  is  directly  in  line 
with  our  present  conclusion,  and  it  has  never  been  questioned,  but 
on  the  contrary  is  cited  with  approval  in  Dunn  vs.  Rothermel,  112 
Penn.  St.  272. 

This  disposes  of  the  main  question  in  the  case,  and  with  it 
the  exceptions  relating  to  the  measure  of  damages  fall.  The 
plaintiff  recovered  only  the  contract  price,  to  which  she  was 
entitled.        •        ♦        • 

Judgment  affirmed. 

Note. — See  preceding  and  following  cases  and  notes. 


(Law  Reports,  41  Chancery  Division,  295.) 

BOLTON  PARTNEES  vs.  LAMBERT. 

(English  Supreme  Court  of  Judicature,  Court  of  Appeals,  March,  1889.  J 

This  was  an  action  in  the  Chancery  Division  brought  by  Bolton 
Partners,  an  incorporated  company,  against  Lambert  to  enforce 
the  specific  performance  of  an  agreement  to  take  a  lease  of  certain 
premises.  On  the  8th  of  December,  1886,  Lambert  wrote  to  one 
Scratchley,  who  was  then  acting  as  managing  director  of  the 
plaintiff  company,  offering  to  take  the  premises  upon  conditions 
stated  in  his  letter.  Scratchley  wrote  to  Lambert  on  the  9th 
acknowledging  the  receipt  of  the  offer,  and  saying  that  he  would 
refer  it  to  the  directors.  On  December  13,  the  "  works  commit- 
tee  "  decided  to  accept  the  offer  and  that  Lambert  should  be  so 
notified.  On  that  day  Scratchley  wrote  to  Lambert  saying  that 
his  offer  had  been  accepted,  and  that  the  company's  solicitor  had 
been  instructed  to  prepare  the  papers. 

It  was  admitted  that  the  "  works  committee  *'  had  no  authority 
to  accept  the  offer  or  to  bind  the  company  to  carry  out  its  part  of 
the  agreement. 

On  December  17,  the  plaintiff's  solicitor  aeut  defendant  a  draft 
of  the  agreement,  but  objection  was  made  by  the  defendant  to  cer- 


Chap.  V]  Bolton  Partners  vs.  Lambert.  223 

tain  provisions,  and,  after  some  correspondence,  the  defendant,  on 
January  13,  1887,  wrote  to  plaintiff  withdrawing  his  offer,  on  the 
ground  that  he  had  been  misled  by  statements  made  to  him  as  to 
the  value  of  the  property.  On  January  17  the  writ  in  this  action 
was  issued  by  order  of  the  board  of  directors,  and  on  January  28 
the  board  of  directors  formally  confirmed  the  action  of  the  "  works 
committee''  and  Scratchley's  letter  of  acceptance. 

The  defendant  denied  that  there  had  been  any  complete  con- 
tract; and  contended  that  after  he  had  repudiated  his  offer  it  was 
too  late  for  the  company  to  ratify  Scratchley's  acceptance.  He 
also  relied  on  misrepresentation. 

The  action  came  up  before  Mr.  Justice  Kbkewich  on  the  19th 
of  December,  1888,  and  he  decreed  specific  performance,  saying 
among  other  things,  after  finding  that  the  letters  made  a  complete 
contract  and  that  there  was  no  misrepresentation: 

"  It  is  said  that  the  contract  cannot  be  enforced  on  the  ground 
of  want  of  mutuality,  that  is,  that  inasmuch  as  the  company  were 
not  bound  at  any  time  before  the  13th  of  January,  1887,  Mr. 
Lambert  cannot  now  be  compelled  to  perform  the  contract  he  had 
entered  into  with  them  through  their  unauthorized  agent.  As 
regards  the  doctrine  of  mutuality,  I  have  had  to  consider  it  many 
times.  I  am  always  afraid  of  quoting  my  own  decisions.  I  do  not 
think  it  is  the  right  thing  for  a  judge  to  do,  but  I  often  do  refer 
to  them  when  I  can  thereby  avoid  repeating  in  different  words  what 
I  have  said  before.  I  see  that  in  the  case  of  Lee  vs.  Soames,  36 
W.  R.  884,  I  did  refer  to  the  doctrine,  and  to  the  cases  on  the  sub- 
ject, and  I  did  so  even  more  fully  in  the  case  of  Wylson  vs.  Dunn, 
34  Ch.  D.  569,  576,  577,  where  my  view  of  the  doctrine  of  mutuality 
is  stated  with  express  reference  to  the  judgments  of  the  Master  of  the 
Rolls  in  Forrer  vs.  Nash,  35  Beav.  167,  and  Lord  Justice  Fry  in 
Brewer  vs.  Broachvood,  22  Ch.  D.  105.  But  the  question  here  is, 
what  is  the  value  of  want  of  mutuality  as  regards  a  case  of  this  kind. 
Why  should  Mr.  Lambert  be  now  entitled  to  get  off  his  bargain 
because  at  that  time  the  company  was  not  strictly  bound?  Mr. 
Lambert  does  not  seek  to  get  off  his  bargain  on  that  account.  He 
repudiates  it  on  entirely  different  grounds,  and  long  before  he  set 
up  this  point  of  ultra  vires  the  company  had  adopted  the  contract 
made  on  their  behalf  and  had  taken  proceedings,  and  had  waived 
any  right  they  might  have  had  as  against  him  to  resist  specific  per- 
formance of  it  if  he  had  taken  proceedings.  On  what  possible 
ground  therefore  can  he  now  complain  that  he  is  compelled  to  per- 


2S4  Cases  03r  Aszfct.  [Book  I 

form  a  contrart  irVich  Le  iiad  csntered  into  -    "  :  tirs?    The 

CDT'iract  va£  vii}!  iLf^..     It  seems  to  me  i^  . _- iierent  case 

froin  those  irhere  the  originsl  comiracEnig  party  "vras  in  capable  ci 
perf ormirr.  zj  -v-ere  capalole,  I  so  iold,  from  the  rery 

£rsL.  and  imr  7  come  forward  and  adopt  the  bargain, 

the  origiziai  ^  ,  -  .-  dtris  completelj  set  rir'ht  by  their  v&irer. 
Then  corns  in,  n  seems  tc-  me,  *  *  •  -^^^^  doc-trine  of  r^iif  ca- 
tion-     The  doctrine  of  razznc^fr-'-r  ^!r  -"his,  thatTrhen  aprindpal  on 

iriiose  behaif  a  eonrract  hjis  r>r .  ^  : ;    thon^i  it  may  he  m^de  in 

the  £r5i  instance  "wixhoni  Lis  anthcfnty,  adopte  it  and  ratines  it,  then, 

vheiner  tif  :  ^ is  one  vhich.  is  for  Ms  "benent  and  -vrhieb  be  ia 

enf-r:i^r.  c:  _    i  s-onzbt  to  be  enforced  against  him,  the  rati- 

I  i  referred  to  the  date  of  -&i&  oadgrnal  contract,  and  tie  con- 

?  if  he  bad 

_       ,  _       -  the  cme  in 

rrFiect  of  mutnalipr,  the  iTTni-na  of  vhich  I  bare  already  stated, 

r     1-     " '  "^^  to  £■- '  -----       -    -  •  -  031  tne  Ejroniid 

II  .  ..   ,  I'irst-.  £n_  :.  .  -_;  .. -_. -:i  z_n5t,  therefore, 

I  t'^TT.V-  be  jnurment  for  sped^e  performance.* 

Trom  this  Tnirment  the  drfendant  :  The  arpesJ  came 

on  for  bearing-  on  the  15th  of  Mr.:,-.  _.:  "-.----  ~?TTOir, 
Lzsrxixr  grin  Lofes,  L.  JJ-,  aH  of  vbom  reni.     -        .      ._ 

Brict,  Q.  C.  and  Rxbton,,  for  appellant. 

Warminuton,  Q,  C.  and  Chadiryck  Esaley,  fer  plamtiS. 

CoTTOX,  1*.  J.     (After  disposing  of  the  obiection  that  there  vae 
~:  :   I  -- :  -' ■  - — '--    -  —  —         ^-q-j-  ^gj^  j^  j^  ^^^  ^jv^^ 

;  1    _  -  -  _  -        :  i-dant  entirely  'rithire'r  the 

c±£r  he  bad  made.  Of  eomBe  the  vitbdraval  eonld  not  be  eSectiTs 
_:'  '  -  -     -  -        -  \th.     As  soon 

.      -  .  -.-.e.      But  it  is 

-  ^here  &ml\i  be  a  vitbdrsval  by  the  defendant  on  the  13th 

-     '  '      -fer  of    "      '   '-ndant  had 

. . — -.    -  -----  of  the  :  __: 1  eampany, 

■wiiL  was  not  BTrLhoiized  to  bind  the  comj«ny  by  acceptance  of  the 
1  i  therefore  that  nntii  the  cmpEry  ratiSed  ScxatcMey'B 

i-. .  ._  -.  1  -ras  no  :  - ' --  - ' '  :*  on  heniJf  cf  the  company  binding  an 
the  C'lmpEny,  an .  e  the  defendant  could  ■witbdrav  lis  o5er. 

Is  that  BO?    The  n^^e  as  to  rtr  ^  ^  principal  of  acts  done 

:-  cz.  is:-~~^  -  '  '  r:nt  is  thiit  tlr  :^ :-tion  is  throim  back  t-o  the 

i^.-i  A  \^     .      .    lie,  and  thai  the  agent  is  pnt  in  the  same  position 


Chap.  V]  BOLTO5   PAJRTyEES  TS.    IlLXBZBX.  225 

as  if  he  hsd  had  anthority  to  do  the  act  at  the  time  the  aet  vaa 
done  bv  him. 

Yarions  cases  have  been  referred  to  as  lajicg  do-sm  this  principle, 
bnt  there  is  no  case  exactly  like  ihe  present  one.  The  case  of 
Hagedorn  vs.  Olirergon,  2  M.  &  S.  485,  ib  a  strong  case  of  the 
application  of  the  principle.  It  vas  there  p-iinted  oat  ho"w  faror- 
able  the  rule  vas  to  the  principal,  because  till  raiif  cation  he  vaa 
not  bonnd,  and  he  had  an  option  to  adopt  or  not  to  adopt  what 
had  been  done.  In  that  case  the  plaintiS  had  e:?eoiec  an  insurance 
on  a  ship  in  "which  another  persc-n  was  interested,  and  it  vas  held 
that  long  after  the  ship  had  been  lost  the  other  person  might  adopt 
the  act  of  the  plaintiff,,  though  done  iriihont  anthoritr,  so  as  to 
enable  the  plaintiff  to  rce  npon  the  policy.  Again,  in  A  ncona  vs. 
Maris,  7  H.  &  X.  666,  where  a  bill  was  indorsed  to  and  sized  en  in 
the  name  of  Ancona,  •who  had  giren  no  anthority  for  that  purpose, 
yet  it  was  held  that  Ancona  conld,  afrer  the  action  had  t-een 
brought,  ratify  what  had  been  done,  and  that  the  snliHeqrent 
ratification  was  equivalent  to  ft  prior  authority  so  u  to  entitle 
Ancona  to  sue  upon  the  bill.  It  was  said  by  Mr,  Brice  (of  counsel 
for  defendant)  that  in  that  case  there  was  a  preTiously  esisnrg 
liabOity  of  the  defendant  towards  some  person:  but  the  liability  of 
the  defendant  to  Ancona  was  established  by  Ancona's  authcrizing 
and  ratifying  the  act  of  the  agent,  and  a  previously  existing 
liability  to  others  did  not  affect  the  principle  laid  down. 

The  rule  as  to  ratif  cation  is  of  course  subject  to  some  eicertiona. 
An  estate  once  vested  cannot  be  divested,  nor  can  an  act  lawful  at 
the  time  of  its  perfcrmance  be  rendered  unlawful,  by  the  applica- 
tion of  the  doctrine  of  ratiScation.  The  esse  of  Waier  rs.  Jamss, 
L.  B.  6  Ex.  124,  was  relied  on  by  the  appellant,  but  in  that  case 
there  was  an  agreement  between  the  assumed  agent  of  the  defend- 
ant and  the  plaintiff  to  cancel  what  had  been  done  before  any  rati- 
fication by  the  defendant;  in  the  present  case  there  was  no  agree- 
ment made  between  Scratchley  and  the  defendant  that  what  had 
been  done  by  Scratchley  should  be  considered  SiS  null  and  void. 

The  case  of  Bird  vs.  Broicn,  4  Ex.  7S6,  which  was  also  relied  on 
by  the  appellant  is  distinguishable  from  this  case.  There  it  was 
held  that  the  ratif  cation  could  not  operate  to  divest  the  ownership 
which  had  previously  vested  in  the  purchaser  by  the  delivery  of  the 
goods  before  the  ratiication  of  the  alle -ed  stoppage  in  transiiu. 
So,  also,  in  LyeJl  vs.  Eentudg,  IS  Q.  B.  Div.  796,  the  plaintiff,  vho 
15 


226  Oases  os  Agektcy.  [BooV  I 

represented  tlie  lawfnl  heir  desired,  after  the  defendant  Kennedy 
had  acquired  a  title  to  the  estate  by  means  of  the  statute  of  limita- 
tions, and  after  the  title  of  the  heir  was  gone,  to  ratify  the  act  of 
Kennedy  as  to  the  receipt  of  rents,  so  as  to  make  the  estate  vest  in 
the  heir.  In  my  opinion  none  of  these  cases  support  the  appellant's 
contention. 

I  think  the  proper  view  is  that  the  acceptance  by  Scratchley  did 
constitute  a  contract,  subject  to  its  being  shown  that  Scratchley 
had  authority  to  bind  the  company.  If  that  were  not  shown  there 
would  be  no  contract  on  the  part  of  the  company,  but  when  and  as 
soon  as  authority  was  given  to  Scratchley  to  bind  the  company  the 
authority  was  thrown  back  to  the  time  when  the  act  was  done  by 
Scratchley,  and  prevented  the  defendant  withdrawing  his  offer, 
because  it  was  then  no  longer  an  offer,  but  a  binding  contract.  ♦  ♦  • 

The  other  justices  delivered  concurring  opinions. 

Appeal  dismissed. 

Note — See  two  preceding  cases  and  notes.  Ancona  vs.  Marks,  7  BL  & 
N.  686,  cited  in  the  principal  case,  is  cited  and  followed,  as  to  the  retroac- 
tive effect  of  the  ratification  of  the  institution  of  a  suit,  in  Day  Land  <fc 
Cattle  Co.  vs.  State  of  Texas,  (1SS7)  68  Tex.  526. 

In  Sequin  vs.  Peterson,  (1873)  45  Vt.  255,  12  Am.  Rep.  194,  a  previous 
demand  of  a  wife  was  held  sufficiently  ratified  by  the  subsequent  institu- 
tion of  a  suit  by  the  husband,  based  upon  such  demand. 

See  also  Woodward  tw,  Harlow,  (1856)  28  Vt.  338,  ante  p.  165;  Rice  vs. 
McLarren,  ante  p.  190. 


8.  Between  Agent  and  the  other  Party, 


(4  Maule  &  Selwyn",  259.) 

STEPHENS  vs.  ELWALL. 

f English  Court  of  King's  Bench,  Trinity  Term,  1815.  J 

Trover  for  goods  which  had  been  wrongfully  sold  by  bankrupts 
after  their  bankruptcy.  The  goods  had  been  bought  by  one  Deane 
for  his  principal  Hcathcote  who  was  in  America.  Defendant  was 
Heathcote's  clerk,  and,  having  received  the  goods,  he  sent  them  to 
Heathcote.     The  trial  judge,  LeBlano,  instructed  the  jury  that  if 


Chap.  V]  Stephens  vb.  Elwall.  227 

the  defendant  was  acting  merely  as  clerk  for  Ileathcote,  he  would 
not  be  liable;  otherwise,  if  he  was  acting  for  himself.  Verdict  for 
the  defendant.     Motion  for  new  trial. 

Parle,  contra. 

Topping  and  Richardson,  for  the  motion. 

Lord  Ellenborough,  C.  J.  The  only  question  Is,  whether  this 
is  a  conversion  in  the  clerk,  which  nndonbtedly  was  so  in  the 
master.  The  clerk  acted  under  an  unavoidable  ignorance  and  for 
his  master^s  benefit  when  he  sent  the  goods  to  his  master;  but 
nevertheless  his  acts  may  amount  to  a  conver.  ion;  for  a  person  is 
guilty  of  a  conversion,  who  intermeddles  with  my  property  and 
disposes  of  it,  and  it  is  no  answer  that  he  acted  under  authority 
from  another,  who  had  himself  no  authority  to  dispose  of  it.  And 
the  court  is  governed  by  the  principle  of  law,  and  not  by  the  hard- 
ship of  any  particular  case.  For  what  can  be  more  hard  than  the 
common  case  in  trespass,  where  a  servant  has  done  some  act  in 
assertion  of  his  master's  right,  that  he  shall  be  liable,  not  only 
jointly  with  his  master,  but  if  his  master  cannot  satisfy  it,  for 
every  penny  of  the  whole  damage;  and  his  person  also  shall  be 
liable  for  it;  and  what  is  still  more,  that  he  shall  not  recover  con- 
tribution. 

Le  Blanc,  J.  I  think  the  rule  of  law  is  very  different  from 
what  I  considered  it  at  the  trial.  The  great  struggle  made  at  the 
trial  was  whether  the  goods  were  for  Heathcote  or  not;  but  that 
makes  no  difference  if  the  defendant  converted  them.  And  here 
was  a  conversion  by  him  long  before  the  demand. 

Per  Curiam,  Knle  absolute. 

Note. — Where  an  agent  who  has  without  right  purchased  a  husband's 
property  from  the  wife,  haa  taken  possession,  and  turned  it  over  to  his 
principal,  tliis  of  itself  is  a  conversion:  and  demand  by  the  husband  before 
suing  the  agent  for  conversion  is  not  necessary.  Rice  vs.  Yocum,  —  Peniu 
St.  — ,  26  Atl.  Rep.  698. 

If  one  having  the  custody  of  goods  for  carriage,  fraudulently  appropriate 
them  to  his  own  use  by  consigning  them  in  his  own  name  for  sale  to  a  fac- 
tor who  makes  advances  upon  them,  the  factor  is  Uable  for  conversion 
to  the  rightful  owner  if  he  sell  them  and  retain  the  advances  out  of  the 
proceeds,  although  he  is  entirely  ignorant  of  any  want  of  title  in  his  cus- 
tomer and  wholly  innocent  of  any  wrong  intent.  Per  Jackson,  J.,  Ham- 
mond, J.  contra:    Moore  vs.  Hill,  (1889)  38  Fed.  Rep.  830. 

Any  person,  who,  however  innocently,  obtains  possession  of  tlie  goods  of 
a  person  who  has  been  fraudulently  deprived  of  them,  and  disposes  of  them, 
whether  for  his  own  benefit  or  that  of  another,  is  liable  for  a  conversion. 


828  Oases  on  Agek^ct.  [Book  I 

BoUins  vs.  Fowler,  (1875)  L.  R.  7,  H.  L.  757,  14  Moak's  Eng.  Rep.  133. 
See,  also,  Saltus  vs.  Everett,  20  Wend.  (N.  Y.)  263,  32  Am.  Dec.  541.  So 
it  has  been  held  that  an  auctioneer  who  has,  in  good  faith,  received  and  sold 
property  for  one  whom  he  supposed  to  have  the  right  to  direct  the  sale,  but 
who,  in  fact,  had  no  such  right,  is  guilty  of  a  conversion.  Farebrother  vs. 
Ansley,  1  Camp.  343;  Adamson  vs.  Jarvis,  4  Bing.  66. 

A  factor  who  receives  for  sale  goods  from  one  whom  he  believes  to  be  the 
true  owner,  and  having  sold  them,  remits  the  proceeds  to  his  consignor,  is 
not  liable  for  conversion  to  another  who  subsequently  proves  that  he  waa 
the  owner.     Eoach  vs.  Turk,  (1872)  9  Heisk.  (Tenn.)  708,  24  Am.  Rep.  360. 

In  a  note  to  Ryvian  vs.  Gerlach,  153  Penn.  St.  197,  32  Am.  L.  Reg.  781, 
this  rule  is  stated  as  the  result  of  the  authorities:  "An  agent  is  excused  for 
what  he  does,  if  the  act  is  of  such  a  nature  as  would  be  excused  if  performed 
by  a  custodian  having  a  lawful  possession  and  prima  fade  title  such  as  a 
finder  or  bailee,  even  though  the  possession  of  the  servant  or  agent  is 
wrongful,  provided  the  latter  is  ignorant  of  the  real  ownership." 


(>liap.  VI]        Appleton  Bank  vs.  McQilybay.  229 


CHAPTER    VI. 

OF   DELEGATION    OF   AUTHORITT. 


(4    Gray,    518,    64   Am.   Deo.    92.) 

APPLETON    BANK    vs.     McGILYEAY. 

^Supreme   Judicial    Court   of  Massachusetts,    October,   1856.) 

Defendants  who  did  business  in  Boston  held  a  note  against  a  firm 
doing  business  in  Lowell,  due  April  7,  1854.  They  delivered  the 
note  to  an  expressman  between  Boston  and  Lowell  for  collection, 
and  directed  him  to  collect  in  the  ordinary  way.  The  expressman 
Bometimes  collected  notes  left  with  him  by  calling  upon  the  maker 
personally  and  sometimes  by  depositing  them  in  a  bank.  He  did 
not  inform  defendants  how  he  intended  to  collect  their  note,  nor 
did  he  know  whether  they  were  aware  that  he  sometimes  collected 
through  a  bank.  lie  left  the  note  with  plaintiff,  a  bank  in  Lowell, 
for  collection.  On  the  8th  of  April,  he  called  at  the  bank  and 
asked  if  the  note  had  been  paid,  and  was  told  that  it  had  been,  and 
he  was  given  the  amount  which  he  turned  over  to  defendants,  less 
his  charges.  The  note  in  fact  had  not  been  paid,  nor  had  the 
maker  been  notified,  and  it  was  the  mistake  of  a  clerk  in  the  bank 
in  saying  that  it  had  been  and  in  delivering  the  money  to  the 
expressman.  Immediately  upon  discovering  the  mistake  the  bank 
demanded  payment  of  the  makers  which  was  refused.  The  bank 
then  tendered  back  the  note  to  defendants  and  demanded  the 
return  of  the  money  paid  to  the  expressman,  which  was  refused, 
and  this  action  was  to  recover  it.  It  appeared  that  the  makers  of 
the  note  could  not  and  would  not  have  paid  the  note  if  it  had  been 
presented  at  maturity.  Verdict  by  consent  for  plaintifEs  subject  to 
opinion  of  the  full  count. 

D.  S.  Bichardson  and  W.  A.  Richardson,  for  the  plaintiffs. 
J.   0.  Abbott,  for  the  defendants. 

By  Court,  Bigelow,  J.     The  objection  that  this  action  cannot 

be  maintained,  for  want  of  privity  between  the  parties  to  the  suit, 
is  not  sustained  by  proof.     The  rule  of  law  is  well  settled,  that  in 


S30  Cases  on  Agency.  [Book  I 

the  absence  of  any  authority,  either  express  or  implied,  to  employ 
a  subagent,  the  trust  committed  to  an  agent  is  exclusively  personal, 
and  cannot  be  delegated  by  him  to  another  so  as  to  affect  the  rights 
of  the  principal.  In  such  case,  if  the  agent  employs  a  substitute, 
he  does  it  at  his  own  risk  and  upon  his  own  responsibility.  The 
agent  only  is  liable  to  the  principal,  and  the  subagent  is  responsi- 
ble solely  to  his  immediate  employer;  nor  can  the  principal  be 
liable  for  the  acts  of  the  subagent.  There  is  no  privity  between 
them  upon  which  any  mutual  rights  and  remedies  can  be  based. 

But  this  general  rule  is  always  subject  to  be  modified  by  the 
peculiar  circumstances  of  each  particular  case,  from  which,  or  from 
the  usage  of  trade,  a  power  to  delegate  an  authority  can  be  inferred: 
Story  on  Agency,  sees.  14,  388. 

In  the  case  at  bar,  it  appears  that  the  defendants  delivered  the 
note  for  collection  to  the  carrier,  with  directions  "  to  collect  it  in 
the  ordinary  way,**  and  that  it  was  his  custom  to  collect  notes  by 
depositing  them  in  a  bank,  as  well  as  by  calling  on  the  parties  per- 
sonally. The  directions  given  by  the  defendants  were  equivalent 
to  an  authority  to  adopt  either  of  the  modes  of  collecting  the  note 
which  the  carrier  was  in  the  habit  of  using,  and  well  warranted  the 
jury  in  finding  that  the  plaintiffs  were  duly  employed  as  the  agents 
of  the  defendants  in  this  particular  transaction.  We  cannot  doubt 
that  if  the  carrier  had  died  or  become  insolvent  before  payment  to 
him  of  the  amount  collected  by  the  plaintiffs,  the  defendants,  upon 
disclosure  of  the  agency,  would  have  had  a  good  claim  therefor 
against  the  plaintiffs.  The  privity  necessary  to  make  the  parties 
liable  to  each  other  is  created  by  the  authority  to  employ  a  sub- 
agent,  which  is  fairly  to  be  inferred  from  the  evidence. 

This  view  of  the  legal  relation  of  the  parties  is  decisive  of  the 
remaining  objection  to  the  plaintiff's  right  of  recovery  in  this 
action.  The  money  was  clearly  paid  over  to  the  defendants  under 
a  mistake  of  fact,  and,  upon  familiar  principles,  an  action  can  be 
maintained  to  recover  it  back.  It  is  no  answer  to  the  plaintiffs* 
claim  that  the  mistake  arose  from  the  negligence  of  the  plaintiffs. 
The  ground  on  which  the  rule  rests  is,  that  money  paid  through 
misapprehension  of  facts,  in  equity  and  good  conscience  belongs  to 
the  party  who  paid  it;  and  cannot  be  justly  retained  by  the  party 
receiving  it  consistently  with  a  true  application  of  the  real  facts  to 
the  legal  rights  of  tlie  parties:  2  Saund.  PI.  &  Ev.  2  ed.  394.  The 
cause  of  the  mistake,  therefore,  is  wholly  immaterial.  The  money 
is  none  the  less  due  to  the  plaintiffs  because  their  negligence  caused 


Oliap,  VI]        Appleton  Bank  vs.  McGilveat.  231 

the  mistake  tmder  which  the  payment  was  made.  The  case  would 
have  been  different  if  it  had  appeared  that  the  defendants  had 
Buffered  any  damage,  or  changed  their  situation  as  respects 
their  debtor,  by  reason  of  the  laches  of  the  plaintiffs.  But  the 
facts  show  that  their  rights  were  wholly  unaffected  by  the  mistake 
under  which  the  payment  was  made.  Nothing  occurred  subse- 
quently to  the  payment  which  renders  it  unconscientious  to  recover 
the  money  back.  It  is  therefore  clear  that  the  defendants  have 
money  belonging  to  the  plaintiffs  in  their  hands,  to  which  they 
show  no  legal  or  equitable  title,  Kelly  vs.  Solari,  9  Mee.  &  W.  54; 
Bell  vs.  Oar  diner,  4  Man.  &  Gr.  11;  Horn  vs.  Baker,  2  Smith's 
Lead.  Gas.  243,  244. 

Judgment  on  the  verdict. 


(73  New  Yoek,  73,  29  Am.  Eep.  105.) 

BIRDSALL  vs.  CLARK. 

CNew  York  Court  of  Appeals,  March,  1878.) 

Action  to  restrain  the  superintendent  of  streets  of  Binghamton, 
and  his  servants,  from  repairing  the  sidewalk  in  front  of  plaintiff^a 
premises.  In  1873  the  common  council  of  that  city,  by  resolution, 
determined  to  make  certain  repairs  to  the  sidewalks  in  the  street 
on  which  the  plaintiff's  premises  fronted,  and  directed  the  plaint- 
iff to  make  the  sidewalk  in  front  of  his  premises  conform  thereto 
by  a  specified  day.  The  plaintiff  failed  to  comply,  and  the 
defendant,  as  such  superintendent,  proceeded  to  make  the  repairs, 
pursuant  to  another  resolution  set  forth  in  the  opinion.  The 
plaintiff  had  judgment  which  was  reversed  at  general  term,  and 
he  appealed.     Other  facts  appear  in  the  opinion, 

Ausburn  Birdsall,  appellant,  in  person. 
Samuel  Hand,  for  respondents. 

Church,  C.  J.  There  is  no  question  but  that  the  common 
council  had  full  power  to  ordain  the  grading  and  curbing  of  the 
sidewalk  in  front  of  the  plaintiff's  premises,  and  that  for  any  inci- 
dental or  consequential  injury  the  plaintiff  had  no  remedy,  upon 
the  general  principle  that  private  interests  are  subordinate  to  the 
public  good.     By  section  14  of  title  8  of  the  charter  of  the  city  of 


232  Cases  02J  Agency.  [  Book  1 

Binghampton,  the  building  and  maintaining  in  good  order  of  all 
sidewalks  is  to  be  done  at  the  expense  of  the  premises  in  front  of 
which  they  are  required,  or  of  the  owner  thereof;  and  after  provid- 
ing that  the  common  council  shall  order  the  work  to  be  done  within 
a  specified  time,  and  cause  a  notice  of  the  same  to  be  served  upon 
the  owner  or  person  in  possession  of  the  premises,  it  provides  that 
"  If  any  work  shall  not  be  done  within  the  time  limited  therefor, 
the  common  council  shall  ly  contract,  or  otherwise,  cause  it  to  be 
done,  and  assess  the  expenses  thereof,  with  ten  per  cent  additional 
upon  said  premises,  or  upon  the  owner  thereof." 

In  1870  the  common  council  passed  a  general  resolution  direct- 
ing the  superintendent  of  streets,  when  the  owner  neglected  to  do 
the  work  by  the  time  limited,  *'to  cause  the  same  to  be  done," 
and  the  question  is  whether  this  is  a  proper  exercise  of  the  power 
conferred  upon  the  common  council  by  the  clause  before  quoted. 
It  is  a  well  settled  principle  that  public  powers  or  trusts  devolved 
by  law  or  charter  upon  the  council  or  governing  body  to  be  exer- 
cised by  it  when  and  in  such  manner  as  it  shall  judge  best,  cannot 
be  delegated  to  others.  (Dill,  on  Mun.  Corp.  §60.)  If  discretion 
and  judgment  are  to  be  exercised,  either  as  to  time  or  manner,  the 
body  or  oCicer  intrusted  with  the  duty  must  exercise  it,  and  can  not 
delegate  it  to  any  other  officer  or  person.  On  the  other  hand,  a 
municipal  corporation  may  appoint  agents,  or  give  directions  to 
subordinate  officers  to  perform  duties  of  a  ministerial  or  admin- 
istrative character.  Dill,  on  Mun.  Corp.,  §  60.  The  point 
involved  is  within  a  narrow  compass.  Any  work  not  done  within 
the  time  limited,  the  charter  requires  the  common  council  to  cause 
to  be  done  by  contract  or  otherwise.  The  coimcil  directed,  not  in 
a  specific  case,  but  in  all  cases,  that  the  sujierintendent  of  streets 
should  ''cause  the  work  to  be  done,"  thus  delegating  the  precise 
authority  conferred  upon  it.  Tlie  charter  conferred  the  power 
upon  the  council  to  cause  it  to  be  done,  by  contract  or  otherwise. 
This  requires  the  exercise  of  discretion  and  judgment  as  to  the 
manner  in  which  the  work  should  be  done.  Whose  judgment  is 
to  be  exercised?  The  legislature  has  said  that  it  is  the  judgment 
of  the  council,  but  the  latter  has  attempted  to  invest  the  superin- 
tendent of  streets  with  its  exercise.  This  t]iey  had  no  power  to 
do.  The  charter  clearly  contemplates  the  action  of  the  council  in 
each  case.  As  to  one  work,  it  may  be  judicious  and  economical 
to  direct  that  it  be  done  by  contract,  and  let  to  the  lowest  bidder; 
In  another,  by  contract  with  a  particular  person  without  bidding; 


Oliap.  VI  ]  BiitDSALL  vs.  Olaek.  233 

in  another,  partly  by  contract  and  partly  by  day's  work;  and  in 
another,  entirely  by  day's  work;  and  other  terms  and  directions 
might  be  appropriate. 

The  owner,  who  is  ultimately  to  pay  the  expense,  has  an  interest 
in  the  manner  in  which  the  work  is  to  be  done,  because  it  may 
materially  afEcct  the  amount  of  the  expense.  He  is  entitled  to  the 
judgment  of  the  council  on  that  question.  The  principle  decided 
in  the  case  of  Thompson  vs.  Schermerhorn,  6  N.  Y.  92,  55  Am. 
Dec.  385,  is  applicable.  There  the  common  council  of  Schenec- 
tady were  authorized  to  make  by-laws  and  ordinances  directing  the 
improvement  of  streets  within  such  time  and  in  such  manner  as 
they  might  prescribe,  and  passed  an  ordinance  for  pitching  and 
flagging  a  certain  street  in  such  manner  as  the  city  superintendent, 
under  the  direction  of  a  committee  of  the  common  council,  should 
direct  and  require.  This  court  held  the  ordinance  void  by  omit- 
ting to  specify  the  manner  in  which  the  improvement  was  to  be 
made.  The  court  say:  "  In  effect  it  is  a  power  of  taxation,  which 
is  the  exercise  of  sovereign  authority,  and  nothing  short  of  the 
most  positive  and  explicit  language  can  justify  the  court  in  hold- 
ing that  the  legislature  intended  to  confer  such  a  power  on  a  city 
officer  or  committee."  The  particular  description  of  the  work  is 
no  more  important  than  the  mode  of  making  the  expenditure,  and 
the  same  principle  applies  to  every  power  conferred  upon  the  coun- 
cil until  the  improvement  is  finished  and  the  tax  collected.  It  is 
a  general  rule  that  such  powers  must  be  exercised  in  strict  con- 
formity to  law,  and  that  any  interference  by  public  bodies  or  oflfi- 
cers  with  the  property-rights  of  the  citizen  can  only  be  justified  by 
clear  authority  of  the  statute.  It  seems  to  me  quite  clear  that  the 
proposed  expenditure  required  the  action  of  the  common  council 
to  determine  the  manner  of  doing  the  work,  and  this  being  so,  it 
is  equally  clear  that  such  action  must  have  been  taken  in  accord- 
ance with  section  11  of  title  4  of  the  charter.  It  was  a  "resolu- 
tion" involving  the  expenditure  of  money  for  a  local  improvement, 
and  affected  rights  of  property. 

I  have  examined  the  other  provisions  of  the  charter  referred  to, 
prescribing  the  powers  and  duties  of  the  superintendent  of  streets, 
and  the  power  of  the  common  council  to  prescribe  the  duties  of 
officers,  and  do  not  find  anything  to  affect  the  views  before 
expressed  as  to  the  proper  construction  of  the  clause  quoted. 

The  order  of  the  General  Term  must  be  reversed,  and  the  judg- 
ment entered  upon  the  report  of  the  referee  affirmed. 


234  Cases  on  Agency.  [Book  I 

Note.— See,  also,  Lyon  vs.  Jerome,  26  Wend.  (N.  Y.)  485,  87  Am.  Dec. 
271;  Gale  vs.  Kalamazoo,  23  Mich.  344,  9  Am.  Rep.  80;  Hydes  vs.  Joyes, 
4  Bush,  (Ky.)  464,  96  Am.  Dec.  311;  State  vs.  Eauser,  63  Ind.  155;  State  vs. 
Bell,  34  Ohio  St.  194;  Matthews  vs.  Alexandria,  68  LIo.  115,  30  Am.  Rep.  776. 

In  Osgood  vs.  Kelson,  (1872)  L.  R.  5  H.  L.  636,  645,  where  the  question 
was  as  to  the  validity  of  a  removal  of  the  plaintiff  from  the  office  of  chief 
clerk  of  the  sheriffs  court  of  the  city  of  London,  Martin,  B.,  said:  "The 
next  objection  taken  was,  that  the  amotion  did  not  take  place,  as  the  law 
required,  on  the  authority  of  the  lord  mayor,  aldermen  and  commons,  but 
by  delegation.  In  our  opinion  there  was  no  delegation  at  all  What  waa 
done  was,  that  a  complaint  having  been  made  to  the  body  which  has  con- 
trol in  the  matter,  vi^;:  the  mayor,  aldermen  and  commons  of  the  city  of 
London,  as  to  the  conduct  of  Mr.  Osgood,  it  was  referred  by  them  to  a  com- 
mittee, which  seems  to  have  been  long  used  in  the  corporation  of  London, 
known  as  the  'Officers'  and  Clerks'  Committee,' and  what  they  were  directed 
to  do  was  to  make  inquiry  with  reference  to  the  alleged  complaint,  to  take 
evidence,  and  to  ascertain  the  truth  of  it,  not  for  the  purpose  of  that  com- 
mittee coming  to  any  judgment  or  decision  themselves,  but  for  the  purpose 
of  their  report  being  submitted  to  the  mayor,  aldermen  and  commons  in 
order  that  they  might  come  to  a  judgment  upon  it.  The  argument  of  the 
learned  counsel  is  erroneous  in  point  of  fact.  That  has  not  taken  place 
which  they  allege  to  have  taken  place,  and  therefore  there  was  no 
delegation." 


(26  Minnesota,  377.) 

PETERSON  vs.  CHEISTENSEN. 

(Suprevfie  Court  of  Minnesota,  March,  1880.) 

Appeal  by  defendant  from  an  order  of  the  district  court  over- 
ruling a  demurrer  to  the  complaint. 

B.  F.  Webber  and  M.  J.  Severance,  for  appellant, 

8.  L.  Pierce  and  /.  Newhart,  for  respondent. 

Berrt,  J.  On  February  21,  1878,  defendant  agreed  with 
McCormick  &  Bro.  to  act  as  their  agent  for  the  sale  of  harvesting 
machines  and  mowers,  for  the  season  of  1878.  On  the  next  day, 
as  party  of  the  first  part,  he  made  an  agreement  with  the  plaintiff, 
as  party  of  the  second  part,  as  follows,  viz:  that  he  would  pay, 
turn  over,  and  cause  to  be  paid  and  turned  over  to  the  plaintiff,  at 
such  time  and  times  as  the  plaintiff  may  designate,  any  and  all 
money,  payments,  commissions  and  compensations,  of  whatever  kind 
and  nature,  that  are  due  or  to  become  due,  and  that  he  may  earn 
or  that  will  in  any  manner  accrue  to  him,  by  reason  of  his  said 


Chap.  VI J  Peterson  vs.  Christeksen.  235 

agency  or  as  sncli  agent;  that  the  plaintiff  should  at  all  times  have 
full  and  exclusive  direction  and  control  of  each  and  every  transac- 
tion entered  into,  and  sale  made  by  the  defendant  under  his  said 
agency;  that  the  plaintiff  should  have  free  access  to  all  the  books 
kept  by  defendant;  and  control  of  all  book-accounts,  and  notes 
taken  for  any  of  the  said  machinery,  or  repairs  therefor,  by  the 
defendant;  and  that  the  defendant  would  not,  at  any  time, 
do  or  cause  to  be  done,  any  business  by  himself  or  others  for 
him  in  or  about  said  agency,  or  in  regard  to  any  sale  or  transaction 
thereunder,  until  he  has  first  secured  from  the  plaintiff  his  approval 
and  direction.  For  an  alleged  breach  by  defendant  of  the  fore- 
going agreement,  the  plaintiff  brings  this  action  for  damages.  The 
defendant  interposes  a  general  demurrer. 

In  support  of  the  demurrer  it  is  contended  that  the  agreement 
is  void  as  against  public  policy.  The  argument  is  that  defendant's 
agency  was  presumably  an  ordinary  one,  the  duties  of  which  are 
personal  and  not  assignable;  that,  therefore,  defendant  held  a  per- 
sonal trust,  and  his  principals  were  entitled  to  his  personal  judg- 
ment in  the  business  of  his  agency;  that  by  the  agreement  upon 
which  this  action  is  brought,  defendant  in  effect  transferred  hia 
agency,  and  surrendered  his  personal  judgment,  to  the  plaintiff, 
and  that  such  transfer  and  surrender  are  against  public  policy. 

It  would  be  unwise  to  attempt  to  furnish  an  exact  definition  by 
which  to  determine  whether  a  contract  is  or  is  not  void  as  against 
public  policy.  As  with  regard  to  fraud,  it  is  safer  to  determine 
questions  of  this  kind  as  they  arise  in  particular  cases.  See  Story 
on  Contracts,  §  546.  But  there  need  be  no  hesitation  in  laying 
down  the  general  rule,  that  a  contract  is  not  void  as  against  public 
policy  unless  it  is  injurious  to  the  interests  of  the  public,  (2  Cliitty 
on  Contracts,  982,)  or,  as  it  is  sometimes  expressed,  "  contravenes 
some  established  interest  of  society.-"  Story  on  Contracts,  §  546. 
See,  also.  Bishop  on  Contracts,  §  460. 

The  case  at  bar  does  not  fall  within  this  rule.  Admitting  what 
is  claimed  by  the  defendant,  but  what  does  not  necessarily  appear 
from  the  complaint,  viz.,  that  the  transfer  of  the  defendants'  agency 
was  unauthorized,  the  case  would  be  simply  one  in  which  the 
defendant  had  exceeded  his  authority,  perhaps  ignorantly  and  per- 
haps with  a  fraudulent  intent,  it  matters  not  which.  The  transac- 
tion is  private  merely,  affecting  no  one  but  the  parties  to  it,  and  no 
public  interest  or  established  interest  of  society  is  in  any  way 
involved.  Order  affirmed. 


236  Cases  on  Agency,  [Book  I 

(50  Alabama,  347.) 

HAERALSON  vs.  STEIN. 

^Supreme  Court  of  Alabama,  January,  187Ji,) 

Action  by  Harralson  &  Co.,  against  Stein  for  the  value  of  a  box 
of  tobacco  sold  and  delivered  to  him  by  the  plaintiffs.  There  was 
evidence  tending  to  show  that  Stein  went  to  the  plaintiffs  store  to 
purchase  a  lot  of  tobacco.  He  told  one  of  the  plaintiffs  of  his  pur- 
po'se,  and  the  plaintiff  directed  his  clerk,  Jordan,  to  **  sell  to  Mr. 
Stein  all  the  tobacco  you  can." 

The  clerk  sold  to  Stein,  at  sixty  cents  per  pound,  ten  boxes  of 
tobacco,  which,  except  one,  were  in  the  United  States  bonded 
warehouse,  and  one  was  in  the  store.  The  sale  was  completed, 
except  the  payment  of  the  money  and  the  delivery  of  the  tobacco. 
The  plaintiffs,  who  were  factors,  held  the  tobacco  for  sale  as  com- 
mission-merchants and  factors,  and  had  instructions  not  to  sell  for 
less  than  seventy  cents  a  pound.  When  the  plaintiff,  who  had 
directed  the  clerk  to  make  the  sale,  was  told  the  price,  he  refused  to 
deliver  the  tobacco  under  the  sale  by  the  clerk,  except  one  box,  which 
was  in  the  store  where  the  sale  occurred. 

This  box  was  delivered,  and  carried  away  by  Stein,  at  the  price 
agreed  on  between  Stein  and  the  clerk.  The  clerk  was  the  general 
agent  of  the  factors,  authorized  by  them  to  sell  any  goods  consigned 
to  them,  intrusted  to  his  care.  This  sale  by  the  clerk  was  made  on 
the  16th  day  of  February,  1872.  A  few  days  after  this,  Stein 
returned  to  the  store,  asked  for  his  bill,  and  proposed  to  pay  for  the 
tobacco  sold  to  him  by  the  clerk,  and  demanded  its  delivery.  The 
sale  was  then  repudiated  by  Harralson  &  Co.  and  they  refused  to 
receive  payment  or  to  deliver  it  to  Stein.  The  weight  of  the  tobacco 
in  all  the  boxes  was  shown  to  be  about  six  hundred  pounds.  The 
quantity  of  the  tobacco  in  the  box  which  was  delivered  was  also 
shown.  Stein  refused  to  pay  for  this;  and  Harralson  &  Co.,  in 
their  own  name,  sued  to  recover  its  value;  and  Stein  pleaded  in 
recoupment  of  damages,  that  he  had  been  injured  by  their  failure 
and  refusal  to  deliver  to  him  the  tobacco,  which  they  had  sold  to 
him  by  their  clerk,  to  a  greater  amount  than  the  value  of  the  tobacco 
which  had  been  delivered,  and  for  which  the  present  suit  was 
brought.  There  was  a  judgment  for  Stein  in  the  court  below,  and 
Harralson  &  Co.  appealed  to  this  court. 


Chap.  VI]  Harealsoit  vs.  Stein.  237 

Til  ere  were  two  questions  raised  on  the  trial  below,  which  were 
decided  adversely  to  the  appellants,  to  which  they  excepted,  and 
which  are  insisted  on  as  error  in  this  court.  The  one  was,  that  the 
appellants,  being  factors  and  commission-merchants,  could  not 
make  a  sale  of  the  goods  consigned  to  them,  by  the  agency  of  their 
clerk.  The  other  was  as  to  the  measure  of  damages  when  insisted 
on  by  way  of  recoupment. 

D.  P.  Bestor,  for  appellants. 
R.  &  0.  J.  Semmes,  contra. 

Peters,  0.  J.  (After  stating  tbe  facts.)  Upon  the  first 
proposition  thus  presented,  it  is  contended  that  the  appel- 
lants, being  factors  and  commission  merchants,  were  merely 
the  agents  of  the  owner  of  the  tobacco,  and  could  not  sell 
it  by  their  clerk.  This  is  said  upon  the  principle  that  an 
agency,  being  a  delegated  authority,  it  cannot  be  executed 
by  a  sub-agent,  which  is  expressed  in  the  maxim,  Delegata  potestaa 
non potest  delegari.  But  this  maxim  seems  to  refer  to  those  agencies 
which  involve  the  execution  of  a  bare  power;  and  although  this 
may  apply  to  factors  and  commission  merchants  in  certain  cases, 
yet  it  is  not,  as  to  them,  an  universal  restriction.  Story  on  Agency, 
§§  13,  14;  2  Kent,  633,  marg.  But  this  principle  is  only  invoked 
when  the  attempt  is  made  to  bind  the  owner  by  the  acts  of  the  sub- 
agent.  It  is  otherwise  when  the  factor  assumes  the  position  of  princi- 
pal, and  the  contract  is  attempted  to  be  enforced  in  his  name,  as  is 
the  case  in  the  present  suit.  When  this  is  the  case,  the  factor  makes 
himself  the  principal  in  the  transaction,  and  his  clerk,  who  acts 
under  his  direction,  becomes  his  agent,  and  in  this  way  he  consents 
to  be  bound  by  the  law  which  governs  the  acts  of  parties  who  sus- 
tain such  relations  as  principal  and  agent.  It  has  been  repeatedly 
settled  by  this  court  that  an  administrator  may  bind  himself,  by  a 
sale  of  the  decedent's  personal  property,  which  is  void  as  to  the 
estate;  for  the  reason,  doubtless,  that  he  will  not  be  permitted  to 
undo  what  he  has  deliberately  done  to  another's  injury.  Snedicor 
vs.  Mohhj,  47  Ala.  507;  12  Ala.  298;  5  Porter,  64.  Here  the  sale 
was  made  by  the  factors'  clerk,  by  their  direction,  and  they  are 
seeking  to  enforce  it  in  part  by  this  suit.  If  they  choose  to  act  in 
this  way,  tliey  submit  thus  to  be  bound. 

The  same  would  be  the  case  with  the  vendee.  After  the  sale  is 
completed,  neither  party  to  the  contract  can  repudiate  it.  Such 
is  the  case  here.      •      ♦      •  Affirmed. 


238  Oases  ok  Agency.  [Book  1 


(60    MissouEi,   116.) 

GRADY    vs.     AMERICAN    CENTRAL    INSTJRANOB 
COMPANY. 

CSupreme   Court   of  Missouri,  May,  1875.) 

Action  upon  a  policy  of  insurance.  Defense,  inter  alia,  that  by 
the  terms  of  the  policy  it  was  not  to  be  valid  unless  signed  by 
defendant's  agent,  and  that  the  agent  had  not  signed,  but  his  name 
was  signed  by  another.  There  was  evidence  tending  to  show  that 
the  agent's  name  was  signed  by  such  other  person  with  the  agent's 
knowledge  and  consent.     Judgment  for  defendant  below. 

Ranney  and  Varies,  for  plaintiff  in  error. 
Doniphan  &  Reed,  for  defendant  in  error. 

VoEiES,  J.  *  *  *  It  is  true,  as  insisted  by  the  defendant 
in  this  case,  that  an  agent  cannot  delegate  his  authority  to  act  for 
his  principal,  without  special  authority  from  the  principal  to  do  so, 
or  unless  the  act  of  the  agent,  who  delegates  the  authority,  is 
ratified  by  the  principal  with  knowledge  of  the  facts;  but  this  rule 
does  not  apply  to  mere  ministerial  acts  to  be  performed  by  the 
agent.  It  is  not  necessary  that  the  agent  should  do  such  acts  in 
person;  if  he  direct  the  act  to  be  done,  or,  with  a  full  knowledge 
of  the  act,  adopt  it  as  his  own,  it  is  sufficient.  Commercial  Bank 
V8.  Norton,  1  Hill,  (N.  Y.)  501;  Bartlett  vs.  Palmer,  8  N.  Y.  398; 
Seymour  vs.  Wyckoff,  10  N.  Y.  213;  Lynn  vs.  Burgoyne,  13  B. 
Mon.  (Ky.)  400.        •        •        • 

Reversed. 

Note.— See,  also,  that  mechanical  and  ministerial  duties  may  be  delegated: 
Williams  vs.  Woods,  16  Md.  220;  Newell  vs.  Smith,  49  Vt.  255;  Sayrevs. 
Nichols,  7  Cal.  535,  68  Am.  Dec.  280;  Renwick  vs.  Foster,  66  Iowa  527; 
Bodine  vs.  Exchange  Ins.  Co.,  51  N.  Y.  123. 

Usage  and  the  cxistom  of  the  trade  may  justify  the  delegation:  Darling 
vs.  Stanwood,  14  Allen,  (Mass.)  504;  Johnson  vs.  Cunningham,  1  Ala.  349; 
Smith  vs.  Sublett,  28  Tex.  163. 

So  delegation  may  be  warranted  by  the  evident  expectation  and  intention 
of  the  parties  at  the  time  the  authority  was  conferred:  Johnson  vs.  Cunning- 
ham, supra;  Duluth  National  Bank  vs.  Insurance  Co.,  85  Tenn.  76,  4  Am. 
Bt.  Rep.  744. 


Obap.  VI]  Nat'l  Bank  vs.  Nat'l  Bank.  239 


(112  United  States,  276.) 

EXCHANGE  NATIONAL  BANK  vs.   THIKD  NATIONAL 

BANK. 

CUnited  States  Supreme  Court,  November,  188J^) 

Plaintiff,  a  bank  in  Pittsburgh  which  had  discounted  them,  sent 
to  defendant,  a  bank  in  New  York,  eleven  unaccepted  drafts 
drawn  on  "Walter  M.  Conger,  Sec'y  Newark  Tea  Tray  Co., 
Newark,  N.  J."  Defendant  sent  them  to  a  bank  in  Newark  for 
collection.  They  were  recognized  by  all  the  banks  as  drafts  upon 
the  Tea  Tray  Company.  The  Newark  bank  took  Conger's  indi- 
vidual acceptance,  on  his  refusal  to  accept,  as  secretary,  but  gave 
no  notice  of  this  until  the  drawers  and  indorsers  of  the  drafts  had 
become  insolvent.  This  action  was  to  hold  defendant  liable  for 
the  neglect  of  the  Newark  bank.  Judgment  below  for  defendant 
and  plaintiff  brings  error. 

John  R.  Emery  and  Thomas  N,  McCarfer,  for  plaintiff  in 
error. 

A,  Q.  Keasley,  for  defendant  in  error. 

Blatchford,  J.  (After  stating  the  facts.)  It  is  contended  by 
the  defendant,  that  its  liability,  in  taking  at  New  York  for  col- 
lection these  drafts  on  a  drawee  at  Newark,  extended  merely  to 
the  exercise  of  due  care  in  the  selection  of  a  competent  agent  at 
Newark,  and  to  the  transmission  of  the  drafts  to  such  agent,  with 
proper  instructions;  and  that  the  Newark  bank  was  not  its  agent, 
but  the  agent  of  the  plaintiff,  so  that  the  defendant  is  not  liable 
for  the  default  of  the  Newark  bank,  due  care  having  been  used  in 
selecting  that  bank.  Such  would  be  the  result  of  the  rule  estab- 
lished in  Massachusetts.  Fabens  vs.  Mercantile  Bank,  23  Pick. 
330;  34  Am.  Dec.  59;  Dorchester  Banh  vs.  New  England  Bajih, 
1  Cush.  177;  in  Maryland,  Jackson  vs.  Utiion  Bank,  6  Ear.  & 
Johns.  146;  in  Connecticut,  Lawrence  vs.  Stonington  Bank,  6 
Conn.  521;  East  Haddam  Bank  vs.  Scovil,  12  Conn.  303;  in  Mis- 
souri, Daly  vs.  Butchers'  &  Drovers'  Bank,  56  Mo.  94;  17  Am. 
Rep.  603;  in  Illinois,  Jitna  Ins.  Co.  vs.  Alton  City  Bank,  25  HI. 
243;  in  Tennessee,  Bank  of  Louisville  vs.  First  Nat'l  Bank,  8 
Baxter,  101,  35  Am.  Rep.  691;  in  Iowa,  Guelich  vs.  Nat'l  State 
Bank,    56  Iowa,   434,  41  Am.  Rep.  110;  and  in  Wisconsin,  Stac^ 


240  Oases  on  Agency.  [Book  I 

vs.  Dane  Connty  Bank,  12  Wis.  629;  Vilas  vs.  Bryants,  Id.  702.* 
The  anthorities  which  support  this  rule  rest  on  the  proposition, 
that  since  what  is  to  be  done  by  a  bank  employed  to  collect  a 
draft  payable  at  another  place  cannot  be  done  by  any  of  its  ordi- 
nary officers  or  servants,  but  must  be  entrusted  to  a  sub-agent,  the 
risk  of  the  neglect  of  the  sub-agent  is  upon  the  party  employing 
the  bank,  on  the  view  that  he  has  impliedly  authorized  the 
employment  of  the  sub-agent;  and  that  the  incidental  benefit 
which  the  bank  may  receive  from  collecting  the  draft,  in  the 
absence  of  an  express  or  implied  agreement  for  compensation,  is 
not  a  sufficient  consideration  from  which  to  legally  infer  a  con- 
tract to  warrant  against  loss  from  the  negligence  of  the  sub-agent. 
The  contrary  doctrine,  that  a  bank  receiving  a  draft  or  bill  of 
exchange  in  one  State  for  collection  in  another  State  from  a 
drawee  residing  there,  is  liable  for  neglect  of  duty  occurring  in  its 
collection,  whether  arising  from  the  default  of  its  own  officers  or 
from  that  of  its  correspondent  in  the  other  State,  or  an  agent 
employed  by  such  correspondent,  in  the  absence  of  any  express  or 
implied  contract  varying  such  liability,  is  established  by  decisions 
in  New  York:  Allen  vs.  Merchants'  Bank,  22  Wend.  215,  34  Am. 
Dec.  289;  Bank  of  Orleans  vs.  Smith,  3  Hill,  560;  Montgomery 
County  Bayik  vs.  Albany  City  Bank,  3  Selden,  459;  Commercial 
Bank  vs.  Union  Bank,  1  Kernan,  (11  N.  Y.)  203,  212;  Ayrault  vs. 
Pacific  Bank,  47  N.  Y.  570,  7  Am.  Rep.  489;  in  New  Jersey, 
litus  vs.  Mechanics'  National  Bank,  6  Vroom  (35  N.  J.  L.)  588; 
in  Pennsylvania,  Wingate  vs.  Mechanics'  Bank,  10  Penn.  St.  104;' 
in  Ohio,  Reeves  vs.  State  Bank,  8  Ohio  St.  465;*  and  in  Indiana, 
Tyson  vs.  State  Bank,  6  Blackford,  225.*  It  has  been  so  held  in 
the  second  circuit,  in  Kent  vs.  Dawson  Bank,  13  Blatchford,  237; 
and  the  same  view  is  supported  by  Talcr  vs.  Perrott,  2  Gall.  5G5; 

*  This  rule  prevails  also  in  Mississippi.  Tier  nan  vs.  Commercial  Bank, 
7  How.  648;  Agricultural  Bank  vs.  Commercial  Bank,  7  Sm.  &  M.  592; 
Bowling  vs.  Arthur,  84  Miss.  41;  Third  National  Bank  vs.  Vicksbvrg 
Bank,  61  Miss.  112,  48  Am.  Eep,  78;  Louisiana,  Hyde  vs.  Planters'  Bank, 
17  La.  Ann.  560;  Baldwin  vs.  Bank  of  Louisiana,  1  La.  Ann.  13;  Penn- 
sylvania, Merchants  National  Bank  vs.  Goodman,  109  Penn.  St.  422,  68 
Am.  Ptep.  728. 

*  This  seems  to  be  an  error.  See  Merchants'  National  Bank  vs.  Good- 
man, 109  Penn.  St.  422,  58  Am.  Rep.  7:28. 

•See,  also,  Bank  vs.  Butler,  41  Ohio  St.  519,  52  Am.  Rep.  94. 

*  The  same  rule  obtains  in  Michigan,  Simpson  vs.  Waldby,  68  Mich.  489; 
Montana:  Power  vs.  First  National  Bank,  6  Mont  £51,  and  Minnesota; 
Streissguth  vs.  National  Bank,  48  Minn.  50. 


Chap.  VI]  Nat*l  Bank  \b.  Nat*l  Bank.  241 

and  by  the  English  cases  of  Van  Wart  vs.  Woolley,  3  B.  &  C.  439; 
8.  0.  5  D.  &  R.  374,  and  MacTcersy  vs.  Ramsay s,  9  CI.  &  Fin.  818. 
In  the  latter  case,  bankers  in  Edinburgh  were  employed  to  obtain 
payment  of  a  bill  drawn  on  Calcutta.  They  transmitted  it  to  their 
correspondent  in  London,  who  forwarded  it  to  a  house  in  Calcutta, 
to  whom  it  was  paid,  but,  that  house  having  failed,  the  bankers  in 
Edinburgh  being  sued,  were,  by  the  House  of  Lords,  held  liable 
for  the  money  on  the  ground  that,  they  being  agents  to  obtain  pay- 
ment of  the  bill,  and  payment  having  been  made,  their  principal 
could  not  be  called  on  to  suffer  any  loss  occasioned  by  the  conduct 
of  their  sub-agents,  between  whom  and  himself  no  privity  existed. 

The  question  under  consideration  was  not  presented  in  Banh 
of  Washington  vs.  Triplett,  1  Pet.  25;  for  although  the  defendant 
bank  in  that  case  was  held  to  have  contracted  directly  with  the 
holder  of  the  bill  to  collect  it,  the  negligence  alleged  was  the  neg- 
ligence of  its  own  ofScers  in  the  place  where  the  bank  was  situated. 

In  Hoover  vs.  Wise,  91  U.  S.  308,  a  claim  against  a  debtor  in 
Nebraska  was  placed  by  the  creditor  in  the  hands  of  a  collecting 
agency  in  New  York,  with  instructions  to  collect  the  debt,  and 
with  no  other  instructions.  The  agency  transmitted  the  claim  to 
an  attorney  at  law  in  Nebraska.  The  attorney  received  the 
amount  of  the  debt  from  the  debtor  in  Nebraska,  in  fraud  of  the 
bankrupt  law,  and  paid  it  over  to  the  agency,  but  the  money  did 
not  reach  the  hands  of  the  creditor.  The  assignee  in  bankruptcy 
having  sued  the  creditor  to  recover  the  money,  this  court  (three 
justices  dissenting)  held  that  the  attorney  in  Nebraska  was  not  the 
agent  of  the  creditor  in  such  a  sense  that  his  knowledge  that  a 
fraud  on  the  bankrupt  law  was  being  committed  was  chargeable  to 
the  creditor  on  the  ground  that,  the  collecting  agency  having 
undertaken  the  collection  of  the  debt,  and  employed  an  attorney 
to  do  so,  the  attorney  employed  by  it,  and  not  by  the  creditor,  was 
its  agent,  and  not  the  agent  of  the  creditor;  and  the  creditor  was 
held  not  to  be  liable  to  the  assignee  in  bankruptcy  for  the  money. 
In  the  opinion  of  the  court  it  is  said,  that  the  case  falls  within  the 
decisions  in  the  above-mentioned  cases  of  Reeves  vs.  State  Banh, 
8  Ohio  St.  465;  MacTcersy  vs.  Ramsay s,  9  CI.  &  Fin.  818;  Mont- 
gomery County  Banh  vs.  AJhany  City  Banh,  3  Selden,  459;  Com- 
mercial Banh  vs.  Union  Banh,  1  Kernan,  203;  and  Allen  vs.  Mer- 
chants' Banh,  22  Wend.  215,  34  Am.  Dec.  289,  and  it  is  said  that 
those  cases,  the  first  three  of  which  are  stated  at  length,  show  "  that 
16 


242  Cases  on  Agency.  [Book  I 

where  a  bank,  as  a  collection  agency,  receires  a  note  for  the  pur- 
pose of  collection,  its  position  is  that  of  an  independent  contractor, 
and  the  instruments  employed  by  such  bank  in  the  business  contem- 
plated are  its  agents  and  not  the  sub-agents  of  the  owner  of  the 
note/^  The  court  proceeds  to  say,  that  those  authorities  go  far 
towards  establishing  the  position,  that  the  collecting  agency  was 
an  independent  contractor,  and  that  the  attorney  it  employed  was 
its  agent  only,  and  not  in  such  wise  the  agent  of  the  defendant  as 
to  make  the  defendant  responsible  for  the  knowledge  of  the  attorney 
in  Nebraska.  The  court  then  cites,  as  a  case  in  point,  Bradstreet  vs. 
Everson,  72  Penn.  St.  122,  13  Am.  Eep.  665,  as  holding  that  where 
a  commercial  agency  at  Pittsburg  received  drafts  to  be  collected  at 
Memphis,  and  sent  them  to  its  agent  at  Memphis,  who  collected 
the  money  and  failed  to  remit  it,  the  agency  at  Pittsburg  was  to 
be  regarded  as  undertaking  to  collect,  and  not  merely  receiving  the 
drafts  for  transmission  to  another  for  collection,  and  as  being  lia- 
ble for  the  negligence  of  its  agent  at  Memphis.  It  also  cites,  as  to 
the  same  purport,  Leicis  vs.  Pech,  10  Ala.  142,  and  Cohh  vs.  Becke, 
6  Ad.  &  El.  930.  It  then  says  that  these  authorities  fix  the  rule, 
before  stated,  on  which  the  decision  is  rested.  So  far  from  there 
being  anything  in  that  case  which  goes  to  exonerate  the  defend- 
ant in  the  case  at  bar,  its  reasoning  tends  strongly  to  affirm  the 
principle  on  which  the  defendant  must  be  held  liable.  Indeed,  its 
language  supports  the  view  that  the  Newark  bank,  in  this  case, 
would  not  be  liable  directly  to  the  plaintiff.  If  that  be  so,  and  the 
defendant  is  not  liable,  the  plaintiff  is  without  remedy.  ♦  •  ♦ 
(Distinguishing  Brit/on  vs.  Niccolls,  104  U.  S.  757.) 

The  agreement  of  the  defendant  in  this  case  was  to  collect  the  drafts, 
not  merely  to  transmit  them  to  the  Newark  bank  for  collection. 
This  distinction  is  manifest;  and  the  question  presented  is,  whether 
the  New  York  bank,  first  receiving  these  drafts  for  collections,  is 
responsible  for  the  loss  or  damage  resulting  from  the  default  of  its 
Newark  agent.  There  is  no  statute  or  usage  or  special  contract 
in  this  case,  to  qualify  or  vary  the  obligation  resulting  from  the 
deposit  of  the  drafts  with  the  New  York  bank  for  collection.  On 
its  receipt  of  the  drafts,  under  these  circumstances,  an  implied 
undertaking  by  it  arose,  j;o  take  all  necessary  measures  to  make  the 
demands  of  acceptance  necessary  to  protect  the  rights  of  the  holder 
against  previous  parties  to  the  paper.  From  the  facts  found,  it  is 
to  be  inferred  that  the  New  York  bank  took  the  drafts  from  the 


Chap.  VI]  Nat'l  Bank  vs.  Nat'l  Bank.  243 

plaintiff,  as  a  cnstomer,  in  the  nsnal  course  of  business.  There 
are  eleven  drafts  in  the  case,  running  through  a  period  of  over 
three  months,  and  the  defendant  had  previously  received  from  the 
plcuntiff  two  other  drafts,  acceptnnces  of  which  it  had  procured 
from  Congor,  at  Xewark,  through  the  Newark  bank.  The  taking 
by  a  bank,  from  a  customer,  in  the  usual  course  of  business,  of 
paper  for  collection,  is  sufficient  evidence  of  a  valuable  considera- 
tion for  the  service.  The  general  profits  of  the  receiving  bank 
from  the  business  between  the  parties,  and  the  accommodation  to 
the  customer,  must  all  be  considered  together,  and  form  a  consid- 
eration, in  the  absence  of  any  controlling  facts  to  the  contrary,  so 
that  the  collection  of  the  paper  cannot  be  regarded  as  a  gratuitous 
favor.  Smedes  vs.  Banh  of  UHca,  20  Johns.  372,  and  3  Cowen, 
6G2;  McKinsier  vs.  Bank  of  Vtica,  9  Wend.  46;  affirmed  in  Bank 
of  Utica  vs.  McKinster,  11  Wend.  473.  The  contract,  then, 
becomes  one  to  perform  certain  duties  necessary  for  the  collection 
of  the  paper  and  the  protection  of  the  holder.  The  bank  is  not 
merely  appointed  an  attorney  authorized  to  select  other  agents  to 
collect  the  paper.  Its  undertaking  is  to  do  the  thing,  and  not 
merely  to  procure  it  to  be  done.  In  such  case,  the  bank  is  held  to 
agree  to  answer  for  any  default  in  the  performance  of  its  contract; 
and,  whether  the  paper  is  to  be  collected  in  the  place  where  the 
bank  is  situated,  or  at  a  distance,  the  contract  is  to  use  the  proper 
means  to  collect  the  paper,  and  the  bank,  by  employing  sub-agents 
to  perform  a  part  of  what  it  has  contracted  to  do,  becomes  respon- 
sible to  its  customer.  This  general  principle  applies  to  all  who 
contract  to  perform  a  service.  It  is  illustrated  by  the  decision  of 
the  Court  of  King's  Bench  in  Ellis  vs.  Turner,  8  T.  E.  531, 
where  the  owners  of  a  vessel  carried  goods  to  be  delivered  at  a  cer- 
tain place,  but  the  vessel  passed  it  by  without  delivering  the  goods, 
and  the  vessel  was  sunk  and  the  goods  were  lost.  In  a  suit  against 
the  owners  for  the  value  of  the  goods,  based  on  the  contract,  it 
was  contended  for  the  defendants  that  they  were  not  liable  for  the 
misconduct  of  the  master  of  the  vessel  in  carrying  the  goods  beyond 
the  place.  But  the  plaintiff  had  judgment.  Lord  Kenton  savins 
that  the  defendants  were  answerable  on  their  contract,  although 
the  misconduct  was  that  of  their  servant,  and  adding:  "  The 
defendants  are  responsible  for  the  acts  of  their  servant  in  those 
things  that  respect  his  duty  under  them,  though  they  are  not  ans- 
werable for  his  misconduct  in  those  things  that  do  not  respect  his 
duty  to  them." 


244:  Cases  on  Agehct.  [Book  I 

The  distinction  between  the  liability  of  one  who  contracts  to  do 
a  thing  and  that  of  one  who  merely  receives  a  delegation  of  author- 
ity to  act  for  another  is  a  fundamental  one,  aj)plicable  to  the 
present  case.  If  the  agency  is  an  undertaking  to  do  the  business,  the 
original  principal  may  look  to  the  immediate  contract  or  with  him- 
Belf,  and  is  not  obliged  to  look  to  inferior  or  distant  under-con- 
tractors  or  sub-agents,  when  defaults  occur  injurious  to  his  interest. 

Whether  a  draft  is  payable  in  the  place  where  the  bank  receiving 
it  for  collection  is  situated,  or  in  another  place,  the  holder  is  aware 
that  the  collection  must  be  made  by  a  competent  agent.  In  either 
case,  there  is  an  implied  contract  of  the  bank  that  the  proper 
measures  shall  be  used  to  collect  the  draft,  and  a  right,  on  the  part 
of  the  owner,  to  presume  that  proper  agents  will  be  employed,  he 
having  no  knowledge  of  the  agents.  There  is,  therefore,  no  reason 
for  liability  or  exemption  from  liability  in  the  one  case  which  does 
not  apply  to  the  other.  And,  while  the  rule  of  law  is  thus  general, 
the  liability  of  the  bank  may  be  varied  by  consent,  or  the  bank  may 
refuse  to  undertake  the  collection.  It  may  agree  to  receive  the 
paper  only  for  transmission  to  its  correspondent,  and  thus  make  a 
different  contract,  and  become  responsible  only  for  good  faith  and 
due  discretion  in  the  choice  of  an  agent.  If  this  is  not  done,  or 
there  is  no  implied  understanding  to  that  effect,  the  same  responsi- 
bility is  assumed  in  the  undertaking  to  collect  foreign  paper  and 
in  that  to  collect  paper  pa3^able  at  home.  On  any  other  rule,  no 
principal  contractor  would  be  liable  for  the  default  of  his  own  agent, 
where,  from  the  nature  of  the  business,  it  was  evident  he  must 
employ  sub-agents.  The  distinction  recurs  between  the  rule  of 
merely  personal  representative  agency  and  the  responsibility 
imposed  by  the  law  of  commercial  contracts.  This  solves  the 
difficulty  and  reconciles  the  apparent  conflict  of  decision  in  many 
cases.  The  nature  of  the  contract  is  the  test.  If  the  contract  be 
only  for  the  immediate  services  of  the  agent,  and  for  his  faithful 
conduct  as  representing  his  principal,  the  responsibility  ceases  with 
the  limits  of  the  personal  services  undertaken.  But  where  the 
contract  looks  mainly  to  the  thing  to  be  done,  and  the  undertaking 
is  for  the  due  use  of  all  proper  means  to  performance,  the  responsi- 
bility extends  to  all  necessary  and  proper  means  to  accomplish  the 
object,  by  whomsoever  used. 

We  regard,  as  the  proper  rule  of  law  applicable  to  this  case,  that 
fleclared  in  Van  Wart  vs.  Wooley,  3  B.  &  0.  439,  where  the 
defendants,  at  Birmingham,  received  from  the  plaintiff  a  bill  on 


Chap.  VI  ]  Nat'l  Bank  vs.  Nat'l  Bank.  245 

London  to  procure  its  acceptance.  They  forwarded  it  to  their 
London  banker,  and  acceptance  was  refused,  but  he  did  not  protest 
it  for  non-acceptance  or  give  notice  of  the  refusal  to  accept.  Chief 
Justice  Abbott  said:  **  Upon  this  state  of  facts  it  is  evident  that 
the  defendants  (who  cannot  be  distinguished  from,  but  are  answer- 
able for,  their  London  correspondent)  have  been  guilty  of  a  neglect 
of  the  duty  which  they  owed  to  the  plaintiff,  their  employer,  and 
from  whom  they  received  a  pecuniary  reward  for  their  services. 
The  plaintiff  is,  therefore,  entitled  to  maintain  his  action  against 
them,  to  the  extent  of  any  damages  he  may  have  sustained  by  their 
neglect.'*  In  that  case  there  was  a  special  pecuniary  reward  for 
the  service.  But,  upon  the  principles  we  have  stated,  we  are  of 
opinion  that,  by  the  receipt  by  the  defendant  of  the  drafts  in  the 
present  case  for  collection,  it  became,  upon  general  principles  of 
law,  and  independently  of  any  evidence  of  usage  or  of  any  express 
agreement  to  that  effect,  liable  for  a  neglect  of  any  duty  occurring 
in  that  collection,  from  the  default  of  its  correspondent  in  Newark. 
"What  was  the  duty  of  the  defendant,  and  what  neglect  of  duty 
was  there?  An  agent  receiving  for  collection,  before  maturity,  a 
draft  payable  on  a  particular  day  after  date,  is  held  to  due  diligence 
in  making  presentment  for  acceptance,  and,  if  chargeable  with  neg- 
ligence therein,  is  liable  to  the  owner  for  all  damages  he  has  sus- 
tained by  such  negligence.  Allen  vs.  Suydam,  20  Wend.  321,  32 
Am.  Dec.  555;  Walker  vs.  Bank  of  the  State  of  New  York,  5  Selden, 
582.  The  drav/er  or  indorser  of  such  a  draft  is,  indeed,  not  dis- 
charged by  the  neglect  of  the  holder  to  present  it  for  acceptance 
before  it  becomes  due.  Bank  of  Washington  vs.  Triplett,  1  Pet. 
25,  35;  Townsley  vs.  Snmrall,  2  Pet.  170,  178.  But,  if  the  draft 
is  presented  for  acceptance  and  dishonored  before  it  becomes  due, 
notice  of  such  dishonor  must  be  given  to  the  drawer  or  indorser,  or 
he  will  be  discharged.  3  Kent's  Comm.  82;  Bank  of  Washington 
vs.  Triplett,  1  Pet.  25,  35;  Allen  vs.  Suydam,  20  Wend.  321,  22 
Am.  Dec.  555;  Walker  vs.  Bank  of  the  State  of  New  York,  5 
Selden,  582;  Goodall  vs.  Dolley,  1  T.  R.  712;  Bay  ley  on  Bills,  2d 
Am.  ed.  213.  Moreover,  the  owner  of  a  draft  payable  on  a  day 
certain,  though  not  bound  to  present  it  for  acceptance  in  order  to 
hold  the  drawee  and  indorser,  has  an  interest  in  having  it  presented 
for  acceptance  without  delay,  for  it  is  only  by  accepting  it  that  the 
drawee  becomes  bound  to  pay  it,  and,  on  the  dishonor  of  the  draft 
by  non-acceptance,  and  due  protest  and  notice,  the  owner  has  a 
right  of  action  at  once  against  the  drawer  and  indorser,  without 


246  Oases  on  Agej^ct.  [Book  I 

waiting  for  the  maturity  of  the  draft;  and  his  agent  to  collect  the 
draft  is  bound  to  do  what  a  prudent  principal  would  do.  3  Kent's 
Com.  94;  Robinson  vs.  Ames,  20  Johns.  146,  11  Am.  Dec.  259; 
Lenox  vs.  Cook,  8  Mass.  460;  BaJUngalls  vs.  Gloster,  3  East,  481; 
Whitehead  vs.  Walker,  9  M.  &  W.  506;  Walker  vs.  Bank  of  the 
State  of  New  York,  5  Selden,  582. 

In  view  of  these  considerations,  it  is  well  settled  that  there  is  a 
distinction  between  the  owner  of  a  draft  and  his  agent,  in  that, 
though  the  owner  is  not  bound  to  present  a  draft  payable  at  a  cer- 
tain day  for  acceptance  before  that  day,  the  agent  employed  to 
collect  the  draft  must  act  with  due  diligence  to  have  the  draft 
accepted  as  well  as  paid,  and  has  not  the  discretion  and  latitude  of 
time  given  to  the  owner,  and,  for  any  unreasonable  delay,  is 
responsible  for  all  damages  sustained  by  the  owner.  3  Kent's 
Comm.  82;  Chitty  on  Bills,  13th  Am.  ed.  272,  273. 

The  defendant  being  thus  under  an  obligation  to  present  the 
drafts  for  acceptance,  and  having  in  fact,  presented  them  through 
the  Newark  bank,  to  Conger,  the  secretary  of  the  company,  was 
bound  not  to  take  the  acceptances  it  did,  but  to  treat  the  drafts  as 
dishonored.  The  plaintiff  was,  at  least,  entitled  to  an  acceptance 
in  the  terms  of  the  address  on  the  drafts.  Walker  vs.  Bank  of 
the  State  of  Kew  York,  5  Selden,  582.  The  defendant  had  notice 
from  the  description  of  the  drafts  by  the  words  "  Newark  Tea  Tray 
Co.,"  in  the  letters  sending  them  for  collection,  that  the  plaintiff 
regarded  the  drafts  as  drawn  on  the  company;  and  the  defendant 
recognized  its  knowledge  of  the  fact  that  the  drafts  were  drawn  on 
the  company,  by  describing  them  by  the  words  "  Newark  Tea  Tray 
Co.,"  in  its  letters  to  the  Newark  bank,  in  every  instance  but  two. 
If,  on  the  face  of  the  drafts,  the  address  was  ambiguous,  it  was  not 
for  the  defendant  to  determine  the  question,  as  against  the  plaint- 
iff, by  taking  an  acceptance  which  purported  to  be  the  acceptance 
of  Conger  individually,  especially  in  view  of  the  information  it  had 
by  the  words  "  Newark  Tea  Tray  Co.,"  in  the  letters  sending  the 
drafts  to  it  for  collection.  It  appears  that  the  drafts  were  dis- 
counted by  the  plaintiU  as  drafts  on  the  company,  and,  if  it  could  have 
had  an  acceptance  in  the  terms  of  the  address,  it  would,  in  a  suit 
against  the  company,  have  been  in  a  condition  to  show  who  was  the 
real  acceptor.  But,  with  the  information  given  to  the  Newark 
bank  by  Conger,  while  that  bank  had  in  its  hands  for  acceptance 
drafts  drawn  in  the  same  form  as  those  here  in  question,  that  ho 
would  not  accept  such  drafts  in  his  official  capacity  as  secretary. 


Chap.  VI  ]  Nat'l  Baxk  vs.  Nat'l  Bank.  247 

the  Newark  bank  chose  to  take  acceptances  individual  in  form. 
This  was  negligence,  for  which  the  defendant  is  liable  to  the  plaint- 
iff in  damages,  no  notice  of  dishonor  having  been  given.  The 
defendant  was  bound  to  give  such  notice  to  the  plaintiff.  Walker 
V8.  Bank  of  the  State  of  New  York,  5  Selden,  582.      ♦      ♦      ♦ 

The  judgment  of  the  circuit  court  is  reversed  with  direction  to 
award  a  new  trial. 


(24  Kansas,  600,  36  Am.  Rep.  264.) 

CUMMINS  vs.  HEALD. 

f Supreme  Court  of  Kansas,  July,  18S0.J 

Cummins,  who  was  a  lawyer  and  banker,  received  from  Heald 
two  notes,  made  by  a  party  living  in  another  part  of  the  state,  for 
collection.  He  gave  to  Heald  a  receipt  ptating  that  he  had  received 
the  notes  **for  collection.''  He  sent  them  to  an  attorney,  Kroenke, 
who  lived  near  the  debtor,  to  be  collected.  Kroenke  collected  the 
money,  kept  it  and  absconded.  This  action  was  brought  to  hold 
Cummins  liable.     Verdict  below  for  the  plaintiff. 

J.  P.  Cummins  and  McClure  &  Humphreys,  for  plaintiff  in  error. 

Thompson  <&  Thompson  and  Johnston  <&  Freeman,  for  defendant 
in  error. 

HoKTON,  C.  J.  The  principal  question  presented  for  our  deter- 
mination is,  who  shall  bear  the  loss  occasioned  by  the  embezzle- 
ment of  F.  W.  Kroenke, — Heald,  the  owner  of  the  notes,  or 
Cummins,  who  received  the  notes  for  collection?  Counsel  for 
plaintiff  in  error  contend  that  as  Cummins  failed  to  receive  any  of 
the  proceeds  of  the  notes  from  Kroenke,  he  is  not  responsible  for 
the  loss,  as  he  acted  in  good  faith,  and  exercised  ordinary  care  and 
diligence  in  all  the  transactions.  Again,  it  is  claimed  by  them, 
that  Cummins  received  the  notes  for  collection  as  a  banker;  that 
he  was  requested  by  Heald  to  send  the  notes  to  an  attorney  at  law 
for  collection;  that  in  accordance  with  the  request,  he  forwarded 
them  to  Kroenke;  that  Heald  approved  of  this  selection  and  action, 
and  thereby  that  Kroenke  was  not  the  agent  of  Cummins,  but  of 
Heald  only.  In  view  of  the  evidence  adduced  upon  the  trial,  and 
the  special  findings  that  Cummins  received  the  notes  as  attorney  at 


248  Oases  on  Agency.  [Bf^ok  I 

law  **  for  collection/*  and  that  the  notes  were  to  be  collected  by 
him,  the  latter  claim  has  no  support  in  the  record. 

Therefore,  we  can  inquire  only  as  to  the  liability  of  Cummins 
under  the  terms  of  the  receipts  for  the  collections.  The  decision 
in  Bradstreet  vs.  Everson,  72  Penn.  St.  124,  13  Am.  Rep.  655,  is 
a  leading  case  upon  the  legal  interpretation  of  a  similar  receipt  of 
a  claim  for  collection.  It  is  there  stated  that  such  a  receipt  "for 
collection "  imports  an  undertaking  by  the  attorney  himself  to 
collect,  and  not  merely  that  he  receives  it  for  transmission  to 
another  for  collection,  for  whose  negligence  he  is  not  to  be  respon- 
sible; that  the  attorney  executing  the  receipt  is  therefore  liable  by 
its  very  terms  for  the  negligence  of  the  distant  attorney,  who  is  his 
agent:  that  he  can  not  shift  the  responsibility  from  himself  upon 
his  client,  that  there  is  no  hardship  in  this,  for  it  is  in  his  power  to 
limit  his  responsibility  by  the  terms  of  his  receipt,  when  he  knows 
he  must  employ  another  to  make  collection.  See  also.  Weeks  on 
Attorneys,  sec.  117;  Wharton  on  Neg.  sec.  753;  Reeves  vs.  State 
Bank,  8  Ohio  St.  465;  Commercial  Banh  vs.  Union  Bank,  11  N. 
Y.  203;  Walker  vs.  Stevens,  79  111.  193;  Morgan,  vs.  Tener,  83 
Penn.  St.  305;  Ke7it  vs.   The  Daivson  Banh,  13  Blatch.  237. 

The  authorities  are  decisive  against  the  relief  of  Cummins  on  the 
ground  of  his  good  faith,  or  the  exercise  of  ordinary  care  and  dili- 
gence. He  took  the  notes  "  for  collection  " ;  he  cor)-esponded  with 
Kroenke,  he  selected  him  as  his  agent;  he  sent  the  notes  to  him  at 
his  own  instance,  and  as  he  must  be  held  liable  under  the  receipts 
for  collections  made  by  his  own  agent,  he  must  suffer  the  loss 
occasioned  by  the  fraud  of  such  agent. 

Counsel  questions  the  correctness  of  the  instruction  of  the  court 
that  Heald  was  entitled  to  interest  from  the  date  the  money  was 
collected:  $5173.75  was  collected  by  Kroenke  on  January  15,  1878; 
and  $256. 75  was  collected  August  26,  1878.  Heald  was  informed  by 
Cummins  early  in  November,  1878,  that  Kroenke  had  collected  the 
notes  and  absconded.  Plaintiff  in  error  alleges  no  demand  was 
made  until  November  25,  1878,  and  that  the  jury  cast  interest  on 
the  money  from  the  dates  of  the  collections.  It  is  the  general  rule 
that  an  attorney  who  collects  money  must  give  his  client  notice 
thereof  immediately,  and  await  instructions,  and  that  no  action 
will  lie  for  the  money  collected  by  him  until  a  demand  is  made, 
Voss  vs.  Bachop,  5  Kan.  59;  yet,  when  the  collection  is  followed  by 
an  embezzlement  of  the  money  collected,  no  demand  is  necessary 
to  maintain  an  action  for  the  recovery  of  the  money.     As  Oummina 


Chap.  VI]  Cummins  vs.  IIeald.  249 

was  civilly  liable  for  the  fraud  of  his  agent,  and  as  the  money  was 
embezzled  upon  its  collection,  the  instruction  of  the  court  was  not 
erroneous.     Comp.  Laws,  1879,  chap.  51,  page  500. 
The  judgment  of  the  District  Court  will  be  affirmed. 

All  concur. 

Note— See  also  Cox  vs.  Livingston,  2  Watts  &  S.  (Pa.)  103,  87  Am.  Deo. 
486;  Rhines  vs.  Evans,  66  Peiin.  St  192,  5  Am.  Eep.  364;  Sanger  vs.  Dun, 
47  Wis.  615,  83  Am.  Rep.  789. 


(141  Massachusetts,  37,  65  Am.  Eep.  443.) 

BARNARD  vs.  COFFIN, 

^Supreme  Judicial  Court  of  Massachusetts,  January,  18S6.J 

Plaintiff  had  160  acres  of  land  in  Illinois  which  he  desired  to  sell 
and  he  employed  the  defendants  to  aid  him  in  finding  a  purchaser. 
Defendants  employed  one  Ochs  to  endeavor  to  get  a  customer  for 
the  land  for  them  for  a  commission.  Ochs  received  an  offer  of 
$22.50  per  acre  for  the  land,  but  reported  it  to  defendants  as  an 
offer  of  $10  per  acre.  Defendants  informed  plaintiff  of  this  offer 
of  $10  and  advised  him  that  they  thought  it  a  fair  one,  and  plaint- 
iff, believing  them,  authorized  them  to  accept  it.  Defendants 
advised  Ochs  that  the  offer  was  accepted,  and  a  deed  from  plaintiff 
was  procured  to  a  person  whom  Ochs  put  forward  as  the  purchaser 
but  who  was  not  really  so.  This  person  then  conveyed  to  the  real 
purchaser,  who  meantime  had  increased  his  offer  to  $22.75  per  acre, 
at  which  rate  he  paid  Ochs.  Ochs  returned  $1,600  to  defendants 
who  transmitted  it  to  plaintiffs  less  their  commissions.  The 
defendants  acted  in  good  faith  having  no  knowledge  that  Ochs  had 
received  more  than  the  $10  per  acre.  When  plaintiff  discovered 
the  fraud,  he  sued  defendants  for  the  balance  at  the  price  received 
by  Ochs  and  recovered.  The  defendents  alleged  exceptions.  The 
other  facts  appear  in  the  opinion. 

B.  R.  Ciirtis  <&  8.  G.  Croswell,  for  defendants, 
O.  0.  Shattuch  <&  W.  A.  Munroe,  for  plaintiff. 

Field,  J.  Of  the  rulings  requested  by  the  defendants  the 
second  and  third  were  refused  because  the  facts  were  not  found  to 


250  Cases  on  Agency.  [Book  I 

be  as  ttey  were  assumed  to  be  in  the  requests,  and  this  is  a  suffi- 
cient reason  for  ihe  refusal. 

The  remaining  exception  is  to  the  refusal  to  rule  that  on  the 
whole  evidence  the  plain tifE  could  not  maintain  the  action.  The 
judge  found  that  no  consent  was  given  by  the  plaintiff  to  the 
defendants  to  delegate  their  authority  to  a  sub-agent,  and  that  no 
custom  or  usage  to  delegate  authority  in  similar  cases  was  shown; 
and  that  the  nature  of  the  employment  of  the  defendants  by  the 
plaintiff  was  that  they  undertook,  for  a  compensation  to  be  paid 
them,  to  aid  the  plaintiff  in  selling  the  land,  by  obtaining,  if  possi- 
ble, offers  for  it,  and  communicating  them  to  him,  for  his  accept- 
ance or  rejection,  together  with  such  information  as  they  could 
readily  obtain  to  assist  him  in  determining  his  action  upon  these 
offers,  and  by  consummating  a  sale  in  case  such  an  offer  was 
accepted.  The  judge  also  found  that  Ochs  was  the  agent  of  the 
defendants  in  the  business  of  obtaining  and  transmitting  offers. 
The  evidence  warranted  these  findings.  The  only  question  of  law 
is  whether,  with  these  findings,  the  plaintiff  can,  on  the  other  facta 
found  and  on  the  evidence,  maintain  his  action. 

If  Ochs  was  employed  by  the  defendants,  without  the  express  or 
implied  consent  of  the  plaintiff,  and  if  there  was  no  usage  in  the 
business  to  employ  sub-agents  and  there  was  no  necessity  from  the 
nature  of  the  business  that  sub-agents  should  be  employed,  there  is 
no  privity  between  the  plaintiff  and  Ochs,  and  Ochs  is  only  liable 
to  his  employers  who  were  the  defendants,  and  the  defendants  are 
liable  to  the  plaintiff  for  the  acts  of  Ochs,  in  the  same  manner  as  if 
those  acts  were  their  own.  War7-e/i  Bank  vs.  Suffolk  Bank.  10 
Gush.  5b2;  Powtmll  vs.  Blair,  78  Penn.  St.  403;  Darling  vs.  Stan- 
wood,  14  Allen,  504;  Stevens  vs.  Bahcoch,  3  B.  &  Ad.  354. 

It  is  argued  that  as  the  plaintiff  knew  before  he  signed  the  deed 
that  the  sale  was  made  by  Ochs,  the  plaintiff  by  confirming  the 
sale  and  signing  the  deed,  ratified  the  employment  of  Ochs.  If 
the  plaintiff  understood  that  Ochs  was  employed  by  the  defendants 
as  his  agent,  then  these  acts  of  the  plaintiff  might  be  held  to  be  a 
ratification  of  his  employment,  and  equivalent  to  an  authority  to 
the  defendants  to  employ  Ochs  as  the  agent  of  the  plaintiff.  But 
if  the  plaintiff  understood  that  the  defendants  employed  Ochs  as 
their  agent  to  assist  them  in  transacting  the  business  which  they 
had  undertaken,  then  these  acts  of  the  plaintiff  might  only  show 
that  the  plaintiff  was  willing  that  the  defendants  should  transact 
the  business  by  means  of  their  servants  or  agents,  for  whom  they 


Chap.  VI  ]  Barn AED  vs.  Coffin.  251 

fihould  be  responsible;  and  it  was  competent  for  the  judge,  on  the 
evidence,  to  find  that  this  was  the  understanding  and  intention  of 
the  plaintiff,  and  he  has  in  elTect  so  found. 

The  principle  which  runs  through  the  cases  is,  that  if  an  agent 
emplo3'S  a  sub-agent  for  his  principal,  and  by  his  authority, 
express  or  implied,  then  the  sub-agent  is  the  agent  of  the  princi- 
pal, and  is  directly  responsible  to  the  principal  for  his  conduct, 
and  BO  far  as  damage  results  from  the  conduct  of  the  sub-agent, 
the  agent  is  only  responsible  for  a  want  of  due  care  in  selecting 
the  sub-agent;  but  the  agent,  having  undertaken  to  do  the  busi- 
ness of  his  principal,  employs  a  servant  or  agent  on  his  own 
account  to  assist  him  in  what  he  has  undertaken;  such  a  sub-agent 
is  an  agent  of  the  agent,  and  is  responsible  to  the  agent  for  his 
conduct,  and  the  agent  is  responsible  to  the  principal  for  the  man- 
ner in  which  the  business  has  been  done,  whether  by  himself  or  by 
his  servant  or  agent. 

The  decision  in  this  case,  as  reported  in  138  Mass.  37,  is  that 
the  finding  that  *'the  defendants  were  bound  to  see  to  it  that  the 
offer  transmitted  was  a  genuine  olfer  and  not  the  offer  of  a  sub- 
agent,"  was  a  ruling  of  law  which  could  not  be  supported  if  the 
defendants  were  only  liable  on  the  ground  of  negligence,  and  not 
on  the  ground  that  Ochs  was  their  agent,  for  whot=e  acts  they  were 

responsible. 

Exceptions  overruled. 

Note.— See  also,  Eoag  va,  Qrave»,  81  Mich.  628;  McCanta  va.  WeUa^  4 
S.  Car.  881. 


252  Oases  on  Age^vGY.  [Book  I 


CHAPTER    VII. 

OF  THE  TERMINATION  OF  THE  RELATION. 


I. 

BY   ORIGINAL   AGEEEMENT. 

(See  cases  stated  in  text  of  Mecliem  on  Agency,  §§  200,  201.) 


BY   ACT   OF  THE   PARTIES. 


(73  Alabama,  373.) 

CHAMBERS    vs.     SEAT. 

^Supreme  Court  of  Alabama,  December,  1889.) 

Action  to  recover  damages  for  an  alleged  wrongful  rcTOcation  of 
plaintiff's  authority  to  sell  lands.  The  opinion  states  the  facts. 
Judgment  for  defendant,  and  plaintiff  appealed. 

Parsons  &  Parsons,  S.  F.  Rice  and  Bradford  &  Bishop,  for 

appellant. 

Bowden  &  Knox,  contra. 

SoMEiiviLLE,  J.  The  main  contention  in  this  case  involves  the 
right  of  the  principal  to  revoke  the  agent's  authority  to  sell,  so  as 
to  deprive  the  latter  of  his  commissions. 

The  agreement,  which  is  the  basis  of  this  suit,  is  in  writing, 
bearing  date  February  28,  1878,  and  is  signed  by  both  the  plaintiff 
and  defendant.  Its  substance  is  briefly  as  follows:  Seay  was  the 
owner  of  a  tract  of  land  in  Talladega  county,  valuable  for  the 
quantity  of  iron  ore  it  was  known  to  contain.  He  placed  this  land 
in  the  hands  of  Chambers  for  sale,  subject  to  Seay's  ratification,  if 
he  (Scay)  should  **deem  the  price  to  be  paid  for  said  property  suf- 
ficient to  warrant  a  sale."     Chambers,  on  his  part,   agreed   to 


Chap.  VII]  Chambeks  vs.  Seat.  253 

undertake  the  sale  of  the  land,  and  to  this  end  nndertook  and 
promised  to  transport  Bpecimens  of  ore  taken  from  it  to  Birming- 
ham, England,  for  inspection  there;  and  also  to  advertise  the  prop- 
erty in  one  respectable  paper  in  each  of  the  cities  of  Birmingham 
and  London,  England.  By  way  of  compensation  for  his  services 
and  expenses,  it  was  stipnlated  that  Chambers  should  receive  *•  an 
undivided  one-fonrth  interest  in  the  proceeds  of  sale  when  sold  as 
aforesaid,^'  and  his  right  to  sell  was  made  *'  exclnsive." 

The  evidence  tends  to  show  that  Seay  revoked  the  agency  of 
Chambers  in  January,  1880,  and  very  soon  afterwards  himself  sold 
the  property  to  one  Glidden  for  the  sum  of  twenty  thousand  dol- 
lars. The  circuit  court  charged  the  jury,  that  the  agreement  in 
question  was  a  mere  revocable  agency,  which  could  be  recalled  by 
the  principal,  Seay,  at  any  time  before  it  had  been  executed,  by  his 
making  a  sale  of  the  property;  and  if  it  was  so  revoked  prior  to 
the  sale  made  by  Seay  to  Glidden,  then  Chambers  was  not  entitled 
to  recover  any  commissions. 

The  rule  is  not  denied,  that,  in  ordinary  cases,  a  principal,  who 
has  empowered  an  agent  to  sell,  may  at  any  time  before  sale  revoke 
the  agent's  authority.  It  is  equally  true  that  the  usual  theory  of 
commissions  is,  that  the  agent  is  to  receive  them  only  in  the  event 
of  success.     "Wood's  Mayne  on  Dama  es,  (Amer.  ed.)  §§  746-747. 

It  is  argued  that  the  present  agreement  does  not  come  within 
this  general  rule,  because  it  confers  on  the  agent  a  power  coupled 
with  an  interest,  and  that  such  a  power  is  irrevocable.  It  is  a 
generally  admitted  proposition  of  law,  that  a  principal  is  not  per- 
mitted to  revoke  the  authority  of  his  agent,  where  such  authority 
is  coupled  with  an  interest,  or  where  it  is  necessary  to  ellectuate  a 
security.  Ewell's  Evans  on  Agency,  marg.  page  83.  These  are 
the  two  established  exceptions,  which  seem,  indeed,  to  be 
essentially  similar  in  principle.  It  is  contended  that  the  agency 
of  the  plaintiff  Chambers  comes  within  the  influence  of  the  first 
exception,  as  being  coupled  with  an  interest,  and  it  was  not 
competent,  therefore,  for  Seay  to  revoke  it.  It  is  not  any  interest, 
however,  that  will  suflBce  to  render  an  agency  irrevocable.  An 
interest  in  the  proceeds  of  sale,  or  money  derived  from  the  sale  of 
property  by  an  agent,  is  not  sufiicient  for  this  purpose.  Barr  vs. 
Schrceder,  32  Cal.  609;  Hartley's  Appeal,  53  Penn.  St.  212,  91  Am. 
Dec.  207;  Gilbert  vs.  Holmes,  64  111.  549.  To  be  irrevocable,  it 
seems  now  well  settled,  that  the  power  conferred  must  create  an 
interest  in  the  thing  itself,  or  in  the  property  which  is  the  subject 


254  Oases  on  Agency.  [Book  I 

of  the  po-wer.  In  other  words,  "  the  povrcr  and  estate  must  be 
united  and  co-existent;"  and,  possibly,  of  such  a  nature  that  the 
power  would  survive  the  principal  iu  the  event  of  the  latter's  death, 
Bo  as  to  be  capable  of  execution  in  the  name  of  the  agent.  Black- 
stone  vs.  Bultennore,  53  Penn.   St.   266,   {post  );  Bonney  vs. 

Smith,  17  111.  631;  Mansfield  vs.  JiJansfield,  6  Conn.  559,  16  Am. 

Dec.  76;  Bu7it  vs.  Rousmarder,  8  Wheat.  174,  {j^ost );  Evans 

on  Agency  (Ewell),  marg.  page  83,  note,  and  p.  85;  Raleigh  vs. 
Atkinson,  6  M.  &  TV.  670.  In  Ilnnt  vs.  Rovsmanier,  svpra,  such 
a  power  was  defined  by  Chief  Justice  Marshall,  to  be  one 
**  engrafted  on  an  estate  in  the  thing  itself." 

The  power  conferred  on  Chambers  was  not  of  this  nature,  very 
clearly.  He  had  no  interest  in  the  subject  matter  of  his  agency, 
the  land  itself.  He  was  interested  only  in  the  money  to  be  derived 
as  the  proceeds  of  the  sale  of  the  land,  which  could  only  be  realized 
by  the  completion  of  his  agency,  or  by  some  negotiation  which  was 
tantamount  to  it.  He  had  parted  with  no  money  or  other  value 
for  the  security  of  which  the  power  of  sale  was  conferred  in  the 
agreement.  He  had  risked  in  the  venture  of  his  agency  only  his 
personal  services  and  the  expenses  incidental  to  its  execution.  The 
undertaking  to  transport  specimens  of  iron  ore  to  England,  and  to 
advertise  the  lands  there,  may  be  embraced  as  a  part  of  the  ordinary 
expense  to  be  incurred  in  the  usual  course  of  such  an  employment. 
It  is  fair  to  presume  that  he  risked  this  much  in  view  of  the  large 
compensation  to  be  reaped  as  commissions,  in  the  event  of  a  suc- 
cessful sale.     Simpson  vs.  Luml),  17  C.  B.  603. 

It  is  insisted  further  that  the  agency  is  rendered  irrevocable  by 
reason  of  ^he  fact,  tbat  the  power  of  sale  conferred  on  Chambers 
was  stipulated  to  be  exclusive.  This  cannot  be  stronger  than  the 
use  of  the  word  "  irrevocable,"  which  has  been  construed  to  fail  of 
Buch  a  purpose,  unless  the  agency  comes  within  the  exceptions  above 
discussed.  In  the  case  of  a  naked  power,  an  express  declaration  of 
irrevocability  will  not  prevent  revocation.  McGregor  vs.  Gardner, 
14  Iowa,  326;  Blackstonevs.  Bnttermore,  53  Penn.  St.  2G6  {post,  — ). 

The  chief  difficulty  arises  in  those  cases  where  the  agent  has 
incurred  trouble  and  expense  in  the  execution  of  his  agency,  and 
has  been  prevented  from  effecting  a  sale  by  the  interference  of  his 
principal,  whether  by  revocation  of  his  authority  or  otherwise.  It 
is  not  just,  it  is  true,  for  a  principal  to  revoke  an  agent's  authority 
without  paying  him  for  labor  and  expense  reasonably  incurred  in 
the  course  of  the  agent's  employment. 


Chap.  VII]  Ohambeks  vs.  Seat.  255 

Unless  otherwise  stipulated,  the  agent  may,  in  a  proper  form  of 
action,  ordinarily  claim  reimbursement  for  the  value  of  these. 
Evans'  Agency  (Ewell),  marg.  p.  83-84.  So  where  a  sale  of 
property  is  brought  about  by  the  advertisements  or  exertions  of  a 
broker  or  agent,  the  broker  being  the  efficient  cause  of  the  sale  and 
the  purchaser  being  found  through  his  instrumentality,  he 
may  often  recover  his  commissions.  Sussdorff  vs.  Schmidt,  55 
N.  Y.  319;  Earp  vs.  Cnmmings,  54  Penn.  St.  394;  93  Am.  Dec. 
718.  These  are  mentioned  as  just  qualifications  of  the  general 
rule,  to  which  we  have  above  adverted,  touching  the  subject  of 
the  revocation  of  an  agent's  authority  by  his  principal. 

The  pleadings  in  the  present  case,  upon  which  it  was  tried,  are 
framed  very  clearly  with  reference  to  a  recovery  of  the  stipulated 
commissions  promised  to  Chambers,  and  the  gravamen  of  the 
action  is,  in  effect,  alleged  to  be  the  wrongful  revocation  of  the 
agency  by  act  of  the  principal.  We  need  not,  for  this  reason,  dis- 
cuss the  question  as  to  the  plaintijBE's  right  to  recover  for  the  value 
of  his  services,  or  for  expenses  incurred.  The  first  and  fifth 
counts  were  obviously  actions  on  the  case,  and  the  other  counts 
were  in  assumpsit.  Myers  vs.  Gillcrt,  18  Ala.  4C7.  The  demur- 
rer for  misjoinder  was  consequently  well  taken,  and  was  properly 
sustained  by  the  court. 

The  rulings  of  the  circuit  court  were  in  accordance  with  above 
views,  and  its  judgments  must  be  affirmed. 

Note.— See,  also,  Clarh  vs.  Marsiglia,  1  Denio,  (N.  Y.)  317,  43  Am.  Dec. 
670;  Owen  vs.  Frink,  24  Cal.  178;  Lord  vs.  Thomas,  64  N.  Y.  110;  Attrill 
vs.  Patterson,  58  Md.  226;  FrtnJc  vs.  Hoe,  70  Cal.  296;  Tucker  vs.  Law- 
rence, 56  Vt.  467;  Simpson  vs.  Carson,  11  Oreg.  861;  Darrow  vs.  St.  George, 
8  Colo.  593.    Sibbald  vs.  Bethlehem  Iron  Co.,  post.  p.  — ^ 


(53  Pennsylvania  State,  266.) 

BLACKSTONE  vs.    BUTTERMORE. 

f  Supreme  Court  of  Pennsylvania,  January,  1867.  J 

Ejectment  by  Blackstone  vs.  Buttermore.  Buttermore,  who  was 
the  owner  of  the  land  in  question,  gave  to  one  Davidson  a  power 
of  attorney  to  sell  the  land  on  terms  therein  mentioned,  which 
power  concluded  as  follows:  "  and  I  hereby  ratify  and  confirm  what- 


256  Oases  on  Agen^ct.  [Book  I 

ever  contract  he  may  make  in  accordance  with  the  above  authority, 
and  bind  myself  for  its  execution.  This  authority  is  irrevocable 
before  the  1st  day  of  May  next."  On  the  19th  of  April,  Davidson 
entered  into  an  agreement  for  the  sale  of  the  land  to  Blackstone, 
which  Butterniore  refused  to  carry  out,  having  previously  revoked 
the  power,  of  which  Blackstone  had  notice  at  the  time  of  the  agree- 
ment.    Verdict  for  defendant. 

A,  Patterson,  for  plaintiff  in  error. 

D.  Eaine  and  C.  E.  Boyle,  for  defendant  in  error. 

Aqnew,  J.  A  power  of  attorney  constituting  a  mere  agency  is 
always  revocable.  It  is  only  when  coupled  with  an  interest  in  the 
thing  itself,  or  in  the  estate  which  is  the  subject  of  the  power,  it  is 
deemed  to  be  irrevocable,  as  where  it  is  a  security  for  money 
advanced  or  is  to  be  used  as  a  means  of  effectuating  a  purpose  neces- 
Bary  to  protect  the  rights  of  the  agent  or  others.  A  mere  power, 
like  a  will,  is  in  its  very  nature  revocable  when  it  concerns  the 
interest  of  the  principal  alone,  and  in  such  case  even  an  express 
declaration  of  irrevocability  will  not  prevent  revocation.  An 
interest  in  the  proceeds  to  arise  as  mere  compensation  for  the 
service  of  executing  the  power  will  not  make  the  power  irrevocable. 
Therefore,  it  has  been  held  that  a  mere  employment  to  transact 
the  business  of  the  principal  is  not  irrevocable  without  an  express 
covenant  founded  on  sufficient  consideration,  notwithstanding  the 
compensation  of  the  agent  is  to  result  from  the  business  to  be  per- 
formed, and  to  be  measured  by  its  extent.  Coffin  vs.  Landis,  46 
Penn.  St.  426. 

In  order  to  make  an  agreement  for  irrevocability  contained  in  a 
power  to  transact  business  for  the  benefit  of  the  principal  binding 
on  him,  there  must  be  a  consideration  for  it  independent  of  the 
compensation  to  be  rendered  for  the  services  to  be  performed.  In 
this  case  the  object  of  the  principal  was  to  make  sale  solely  for  his 
own  benefit.  The  agreement  to  give  his  agent  a  certain  sum  and  a 
portion  of  the  proceeds  was  merely  to  carry  out  his  purpose  to  sell. 
But  what  obligation  was  there  upon  him  to  sell,  or  what  other 
interest  beside  his  own  was  to  be  secured  by  the  sale?  Surely  his 
determination  to  sell  for  his  own  ends  alone  was  revocable.  If  the 
reasons  for  making  a  sale  had  ceased  to  exist,  or  he  should  find  a 
sale  injurious  to  his  interests,  who  had  a  right  to  say  he  should  not 
change  his  mind?  The  interest  of  the  agent  was  only  in  his  com- 
pensation for  selling,  and  without  a  sale  this  is  not  earned.     A  revo- 


Chap.  VII]         Blackstone  vs.  Bdttermoeb.  267 

cation  could  not  injure  him.  If  he  had  expended  money,  time  or 
labor,  or  all,  upon  the  business  intrusted  to  him,  the  power  itself 
was  a  request  to  do  so,  and  on  a  revocation  would  leave  the  princi- 
pal liable  to  him  on  his  implied  assumpsit.  But  it  would  be  the 
height  of  injustice  if  the  power  should  be  held  to  be  irrevocable 
merely  to  secure  the  agent  for  his  outlay  or  his  services  rendered 
before  a  sale.     The  following  authorities  are  referred  to:   Hunt  vs. 

Rousmanier,  8  Wheaton  (U.  S.)  174  post .     Story  on  Agency, 

§§  463,  4G4,  465,  468,  476,  477;  Paley  on  Agency,  155;  1  Parsons 
on  Contracts,  59;  Invin  vs.  Workman,  3  Watts,  (Pa.)  357;  Smith 
vs,  Craig,  3  W.  &  S.  20. 

The  judgment  is  therefore  affirmed. 


(Ill  Indiana,  206.) 

HOWE  vs.  EAND. 

fSupreme  Court  of  Indiana,  May,  1887. J 

The  First  National  Bank  of  Indianapolis  (No.  55)  and  the 
Indiana  Banking  Company  were  jointly  interested  in  certain  per- 
Bonal  property  and  put  Eowe  in  charge  of  it  to  sell  it  out  on  their 
account.  The  proceeds  were,  with  the  consent  of  both  parties, 
deposited  by  Eowe  in  the  bank  of  the  Indiana  Banking  Company 
in  the  name  of  "William  Eowe,  trustee.'*  Afterwards  the  First 
National  Bank  of  Indianapolis  (No.  2556)  was  organized  to  suc- 
ceed to  the  business  of  No.  55.  While  this  deposit  amounted  to 
over  $7,000.  the  banking  company  became  insolvent,  and  on  August 
10, 1883,  the  day  before  it  closed  its  doors,  it  had  a  settlement  with 
the  First  National  Banks,  and  duplicate  releases  were  executed  by 
which  each  released  the  other  of  all  claims  whatever.  Eand  was 
appointed  receiver  of  the  banking  company,  and  Eowe  sought  to 
recover  from  him  the  amount  deposited  in  his  name  as  trustee. 
Judgment  against  him  and  he  appealed. 

H.  J.  MilUgan,  for  appellant. 

F.  Winter  and  J.  M.  Winters,  for  appellee. 

NiBLACK,  J.    (After  stating  the  facts.)     A  trustee  is   one  to 
whom  an  estate  has  been  conveyed  in  trust,  and,  consequently,  the 
17 


258  Cases  ok  Agexcy.  [Book  I 

holding  of  property  in  trust  constitntes  a  person  a  trnstee.  An 
agent  is  one  who  acts  for,  or  in  the  place  of  another,  denominated 
the  principal,  in  virtue  of  power  or  authority  conferred  by  the 
latter,  to  whom  an  account  must  be  rendered.  In  the  case  of  an 
ordinary  agen-cy  for  the  sale  or  disposition  of  property,  the  title  to 
the  property,  as  well  as  to  the  proceeds,  remains  in  the  principal. 
Such  an  agency  may  be  revoked  at  any  time  in  the  discretion  of 
the  principal.  It  may,  also,  be  in  like  manner  terminated  by  the 
renunciation  of  the  agent,  he  being  liable  only  for  the  damages 
which  may  result  to  the  principal.  An  agency  may  also  be,  and  is 
revoked  by  operation  of  law  in  certain  cases,  among  which  are  the 
bankruptcy  of  the  principal,  the  extinction  of  the  subject  matter 
of  the  agency,  the  loss  of  the  principal's  power  over  such  subject 
matter,  or  the  complete  execution  of  the  business  for  which  the 
agency  was  created;  also,  where  the  changed  condition  becomes 
such  as  to  produce  an  incapacity  in  either  party  to  proceed  with 
the  business  of  the  agency.  Where  a  power  or  authority  to  act  as 
agents  is  conferred  on  two  persons,  the  death  of  one  of  them 
terminates  the  agency.  So,  where  two  persons  are  jointly 
appointed  agents  to  take  charge  of  a  particular  business  for  a 
specified  term  or  purpose,  and  one  of  them  becomes  incapacitated 
before  the  term  is  completed  or  the  purpose  is  accomplished,  the 
other  cannot  proceed  alone  without  the  consent  of  the  principal, 
and  hence  the  agency  is  thereby  in  effect  revoked.  Abbott's  and 
Bouvier's  Law  Dictionaries,  titles  '' Agent"  and  ''Agency;"  1 
"Wait's  Actions  and  Defenses,  289;  1  Parsons  Contracts,  39  et  seq.; 
Story  on  Agency,  §§  38,  42,  474,  499. 

The  inevitable  inference  from  these  legal  propositions  is,  that 
when  two  principals  jointly  appoint  an  agent  to  take  charge  of 
some  matter  in  which  they  are  jointly  interested,  and  a  severance 
of  their  joint  interest  afterwards  occurs,  the  severance  revokes  the 
agency. 

An  agent  may  sue  in  his  own  name:  Fu'st,  When  the  contract  ia 
in  writing,  and  is  expressly  made  with  him,  although  he  may  hare 
been  known  to  act  as  agent.  Secondly,  When  the  agent  is  tbe  only 
known  or  ostensible  principal,  and  is,  therefore,  in  contemplation 
of  law,  the  real  contracting  party.  Thirdly,  When,  by  the  usage 
of  trade,  he  is  authorized  to  act  as  owner,  or  as  a  principal  con- 
tracting party,  notwithstanding  his  well-known  position  as  agent 
only.     But  this  right  of  an  agent  to  bring  an  action,  in  certain 


Chap.  VII  ]  KowE  vs.  Rand.  259 

cases,  in  his  own  name,  is  subordinate  to  the  rights  of  the  princi- 
pal, who  may,  unless  in  particular  cases  where  the  agent  has  a  lien 
or  some  other  vested  right,  bring  suit  himself  and  thus  suspend  or 
extinguish  the  right  of  the  agent. 

Applying  the  general  principles  thus  announced  to  the  facts 
hereinbefore  stated,  our  conclusions  are,  that  Rowe  became  an 
agent  only,  and  hence  not  a  trustee,  for  the  sale  of  the  property 
left  with  him  by  the  banks;  that  he  acquired  no  lien  either  upon 
the  property  or  its  proceeds  which  would  have  prevented  the 
national  banks,  or  either  of  them,  as  the  situation  might  have 
authorized  at  the  time,  from  revoking  Rowe's  authority  as  their 
agent,  and  demanding  an  accounting  from  the  banking  company 
as  to  the  money  deposited  with  it  by  him,  or  from  demanding  such 
an  accounting  without  revoking  Rowe's  agency;  that,  conse- 
quently, the  money  so  deposited  constituted  a  fund  upon  which  the 
national  banks  might  have  based  a  claim  against  the  banking  com- 
pany when  the  agreement  was  mutually  entered  into  on  the  10th 
day  of  August,  1883,  and  that,  if,  in  fact,  all  claim  against  that 
fund  was  released  by  the  agreement  of  that  date,  the  agency  of 
Rowe  in  all  matters  concerning  the  fund  was  thereby  revoked, 
leaving  him  in  a  position  to  demand  only  an  accounting  for  his  ser- 
vices and  expenses. 

(The  court  then  find  that  the  effect  of  the  release  was  to  relinquish 
the  national  banks'  claim  upon  this  fund. ) 

Judgment  affirmed. 


(Law  Repoets,  1  Appeal  Cases,  256, 15  Moak's  Eng.  Rep.  124.) 

RHODES   vs.  FORWOOD. 

(English  House  of  Lords,  May,  1876. J 

Action  for  damages  for  an  alleged  breach  of  contract. 

Rhodes  was  the  owner  of  the  Risca  Colliery;  Forwood  &  Paton 
were  brokers  in  Liverpool.  The  declaration  set  forth  an  agree- 
ment dated  the  24th  of  September,  1869,  of  which  the  material 
parts  were  stated  in  the  opinion. 

The  agreement  was  acted  upon  by  the  parties  until  the  Ist  ol 
March,  1873,  when  the  defendants  contracted  to  sell  the  Risca 
colliery,  and  the  vendees  took  possession  of  it  on  the  22d  of  that 


260  Cases  on  Aqekoy.  [Book  I 

month,  and  from  that  the  plaintiffs  had  ceased  to  be  employed  in 
the  sale  of  the  coals. 

Forwood  &  Paton  having  brought  their  action  on  the  agree- 
ment, it  was  referred  to  a  barrister,  who  stated  a  case  for  the 
opinion  of  the  court.  Upon  argument  in  the  Court  of  Exchequer, 
judgment  was  given  by  Mr.  Baron  Beamwell  and  Mr.  Baron 
Cleasbt,  for  the  defendant  Rhodes.  Upon  error  to  the 
Exchequer  Chamber,  that  judgment  was  reversed  by  Lord  Coler- 
idge, Mr.  Justice  Ltjsh,  and  Mr.  Justice  Archibald.  Diss.  Mr. 
Justice  QwAiN".  The  case  was  then  brought  up  on  error  to  this 
house. 

Mr.  Benjamin,  Q.  C,  and  Mr,  Fatchett,  for  the  plaintiff  in 
error. 

Mr.  Manisty,  Q.  C,  and  Mr.  J.  G.  Bigliam,  for  the  defendants 
in  error. 

The  LoED  Ohancelloe  (Lord  Cairkts):  My  Lords,  I  do  not 
think  that  any  of  your  Lordships  can  have  any  doubt  as  to  the 
decision  which  the  house  ought  to  give  in  the  present  case.  The 
case  itself  lies  in  an  extremely  short  compass.  As  regards  its  gen- 
eral history  it  may  be  stated  thus:  There  is  a  colliery  owner  in 
the  south  of  Wales  who  is  anxious  to  place  the  produce  of  his 
colliery  in  the  most  advantageous  way,  and  to  obtain  a  sale  for  the 
coal  taken  from  it  in  the  Liverpool  market,  as  well  as  in  other 
places.  He  enters  into  an  agreement  with  certain  gentlemen  in 
Liverpool,  the  present  respondents.  I  shall  have  to  refer  a  little 
more  particularly  to  the  details  of  that  agreement  afterwards,  but 
the  outline  of  it  is  this,  they  are  to  become  his  agents  for  the  sale 
of  the  coal  sold  in  Liverpool  for  a  period  of  seven  years;  during 
that  time  he  will  not  employ  any  other  agent  in  Liverpool  to  sell 
his  coal,  and,  during  that  time,  they  will  not  act  as  agents  without 
his  consent  for  the  sale  of  any  other  steam  coal;  they  are  to  be 
paid  a  price  for  their  services  by  a  percentage  upon  the  value  of 
the  coal  sold,  and  for  that  price  they  are  to  undertake  all  the 
expense,  of  an  office,  and  of  advertising  and  commending  the  coal 
to  purchasers,  which  may  have  to  be  incurred  in  Liverpool. 

My  Lords,  the  employment  commences  upon  that  footing,  and 
the  case  finds  clearly  that  the  respondents  were  at  considerable 
expense  in  bringing  the  coal  into  the  Liverpool  market,  and  before 
the  notice  of  purchasers.  As  a  matter  of  course  that  expense  would 
naturally  be  incurred  to  a  greater  extent  in  the  earlier  part  of  the 


Chap.  VII]  EuoDES  vs.  Foewood.  261 

term  of  seven  years  tlian  in  the  latter  part.  The  employment 
therefore  during  the  earlier  part  of  the  seven  years  would  naturally 
be  expected  to  be  less  remunerative  than  during  the  latter  part  of 
that  period.  The  employment  went  on  for  about  three  years  and  a 
half.  At  the  end  of  that  time  the  appellant  sold  his  colliery,  and, 
therefore,  of  necessity,  no  more  coal  could  come  to  the  Liverpool 
market  with  regard  to  which  he  would  be  the  principal  and  the 
respondents  his  agents.  That,  of  course,  was  a  considerable  hard- 
ship upon  the  respondents  for  the  reason  that  I  have  mentioned. 
The  expense  which  would  fall  most  heavily  upon  them  would  be 
the  expense  in  the  earlier  part  of  the  employment,  and  they  were 
deprived  of  the  commission  which  they  might  have  earned  during 
the  later  years,  'which  would  have  been  the  most  productive  part  of 
their  employment.  But  although  that  is  a  hardship  upon  them 
which  naturally  one  would  regret  to  see  occur,  still  the  question 
remains  what  was  the  contract  entered  into  between  the  parties, 
and  has  there  been,  in  what  has  been  done,  any  violation  of  that 
contract. 

My  Lords,  it  is  not  contended  that  there  has  been  any  violation 
of  any  express  term  in  any  part  of  the  contract.  There  is  no 
express  term  in  the  contract  from  beginning  to  end  that  the  appel- 
lant, the  colliery  owner,  would  send  any  coal  to  Liverpool,  or  any 
particular  quantity  of  coal  to  Liverpool,  or  that  he  would  continue 
for  any  particular  length  of  time  to  send  coal  to  Liverpool.  As 
regards  express  contract,  there  is  a  complete  absence  of  anything  of 
that  kind. 

But  then  it  is  contended  that  there  is  an  implied  contract  under 
which  the  appellant  was  bound  to  send  coal  to  Liverpool,  and  that 
he  has  disabled  himself  from  performing  that  implied  contract  by 
selling  the  colliery  out  of  which  the  coal  might  have  come.  My 
Lords,  that  requires  your  Lordships  to  look  at  the  whole  contract, 
and  to  discover,  if  you  can,  whether  there  is  any  such  implied  con- 
tract as  is  suggested. 

Now  the  general  effect  of  the  contract  is  this:  Your  Lordships 
will  observe  that  it  commences  in  this  way,  that  **  for  the  term  of 
seven  years  "  "  Paton  &  Forwood,  or  such  of  them  as  shall  continue 
to  carry  on  business  in  the  name  of  that  firm  at  Liverpool,  shall  and 
will  be  the  agents  of  Mr.  Rhodes  at  Liverpool  for  the  sale  of  the 
coals  of  all  kinds  produced  at  the  Eisca  Collieries.*'  I  stop  there 
for  the  purpose  of  saying  that  that  obviously  is,  and  indeed  it  was 
admitted  to  be,  not  a  contract  that  they  would  be  the  agents  of 


263  Cases  on  AQE:sfCY.  [Book  I 

Ehodes  for  the  sale  of  Risca  coal  of  all  kinds  wherever  the  sale 
should  take  place,  bnt  that  they  would  by  the  agents  for  the  sale 
in  Liverpool  of  cuch  of  the  coal  as  was  sold  in  Liverpool;  and, 
farther,  that  it  is  obviously  a  contract  that  they  will  be  the  agents 
of  Ehodes  for  the  sale  of  coal  which  is  produced  at  the  Risca  Colliery 
while  the  Risca  Colliery  is  his  property,  because  if  it  is  the  property 
of  another  person  they  could  not  be  the  agents  of  Rhodes  for  the 
Bale  of  coal  which  did  not  belong  to  Rhodes. 

Farther  than  that,  the  contract  is  that  they  will  thus  be  the  agents 
of  Mr.  Rhodes  for  seven  years  with  this  important  qualification, 
**Subject  nevertheless  to  the  determination  of  such  agency  in  manner 
hereinafter  mentioned. ''  You  are  therefore  informed  at  the  com- 
mencement that  although  there  is  a  fixed  term  stated^  namely, 
seven  years,  means  are  provided  in  a  subsequent  part  of  the  con- 
tract for  terminating  the  agency. 

Then  there  are  two  engagements,  one  upon  the  side  of  Rhodes  and 
the  other  upon  the  side  of  Forwood,  and  they  are  the  only  two 
express  engagements  which  I  find  in  the  contract.  With  regard  to 
Rhodes,  the  express  engagement  on  his  part  is  in  the  second  clause, 
**  During  the  continuance  of  such  agency,  Mr.  Rhodes  will  not 
employ  any  other  agent  for  the  sale  of  coals  in  the  port  of  Liver- 
pool, save  in  respect  of  contracts  now  existing,  all  of  which  are 
expressly  exempted  from  this  agreement."  That  is  all  which  he 
actually  and  openly  contracts  for. 

He  ties  his  hands  against  having  any  other  agent  for  the  sale  of 
coal  in  the  port  of  Liverpool.  The  express  contract  on  the  part  of 
Forwood,  Paton  &  Co.,  is  in  the  fourth  paragraph:  "Forwood,  Paton 
&  Co.  will  not  during  the  continuance  of  their  agency  act  as  agents 
for  the  sale  of  any  other  steam  coal  without  the  written  consent  of 
Mr.  Rhodes,  to  be  obtained  for  each  transaction."  It  is  a  correl- 
lative  contract  on  their  part,  negative  also  in  its  aspect,  that,  as  he 
will  not  employ  any  other  agent,  so  they  will  not  act  for  any  other 
principal.  Now  I  ask  your  Lordships  at  this  point  to  consider  if 
the  contract  had  stopped  here,  what  would  have  been  the  result? 
Both  parties  would  have  been  tied  and  bound  for  seven  years,  the 
one  not  to  employ  another  agent,  the  other  not  to  act  for  another 
principal. 

Tbeu  it  appears  to  have  occurred  to  them,  naturally  enough,  to 
consider — but  what  if  the  agency  produces  no  fruit  to  the  agents? 
Or  what  if  the  agents  are  not  able  to  act  with  tlie  energy  which 
the  principal  expects?    Is  this  state  of  things  to  go  on  for  seven 


Chap.  VII  ]  EnoDES  vs.  Foewood.  253 

years  in  this  case?  And  then  to  deal  with  that  your  Lordships 
find  that  the  7th  clause  is  introduced,  providing  that  if  ''during 
the  first  or  any  subsequent  year  of  the  agency  hereby  created '* 
Forwood,  Paton  &  Co.,  "shall  not  have  lona  fide  sold  50,000  tons  of 
coal  on  Mr.  Khodes'  account,  in  conformity  with  the  terms  of  this 
contract"  (that  is  to  say,  sold  at  prices  of  which  the  principal 
would  approve),  ''it  shall  be  lawful  for  Mr.  Khodes,  at  any  time 
prior  to  the  1st  day  of  May  in  the  ensuing  year,  to  determine  the 
said  agency  at  the  expiration  of  six  months  from  the  delivery  of  a 
notice  in  writing  to  that  effect."  And  on  the  other  hand,  *'  in 
the  event  of  Mr.  Rhodes  not  being  able  to  supply  with  due  dispatch 
the  quantity  and  quality  of  coal  not  exceeding  "  (not  50,000  tons, 
bat)  "  75,000  tons  in  all  in  any  one  year  which  may  have  been  sold 
on  his  account,  in  conformity  with  the  terms  of  this  contract 
(saving  the  case  of  strikes  or  inevitable  accident),  it  shall  be  law- 
ful for  Messrs.  Forwood,  Paton  &  Co.  in  like  manner  to  determine 
their  agency."  Therefore,  there  is  not  an  absolute  contract  to 
employ  no  other  agent  during  seven  years,  and  an  absolute  con- 
tract to  act  for  no  other  principal  for  seven  years,  but  a  contract 
of  that  kind  subject  to  determination  in  the  manner  mentioned, 
the  mode  of  determination  being  that  which  I  have  read,  a  power 
to  the  principal  to  resile  if  his  agent  cannot  sell  at  prices  approved 
by  him,  50,000  tons  of  coal  in  the  year,  and  a  power  to  the  agent 
to  resile  if  the  principal  cannot  supply  him  in  any  year  with 
75,000  tons  of  coal  which  can  be  sold  at  those  prices. 

That  is  the  protection  which  the  parties  have  provided  for  them- 
selves with  reference  to  the  duration  or  the  continuance  of  this  agree- 
ment. Now,  I  ask,  the  parties  having  provided  this  kind  of  pro- 
tection for  themselves,  upon  what  principle  is  it  that  your  Lordships 
are  to  introduce  into  and  to  imply  in  the  agreement  what,  it  is 
admitted,  is  not  found  expressly  there,  namely,  an  engagement 
that  during  that  time  the  principal  will  not  disable  himself  from 
Bending  coals  to  Liverpool  by  selling  his  colliery  to  any  other  per- 
son? This  question  is  asked  by  Mr.  Manisfcy:  Can  you  assume 
that  the  agents  intended  to  leave  open  the  right  to  sell  the  colliery 
without  any  assent  on  their  part?  My  Lords,  I  should  ask,  in  answer 
to  that,  another  question:  Can  you  assume  that  the  principal, 
the  colliery  owner,  meant  to  tie  his  hands  for  seven  years  against  sell- 
ing the  colliery  without  either  obtaining  the  consent  of  the  agents, 
or  without  paying  them  a  gross  sum,  the  equivalent  for  all  the 
profits  they  might  make  by  the  continuance  of  the  engagement  dur- 


264  Cases  on  Agency.  [Book  I 

ing  the  seven  years?  My  Lords,  if  it  was  the  intention  that  there 
should  be  an  implied  undertaking  of  that  kind,  how  inconsistent 
would  that  have  been  with  the  express  clause  which  I  have  read, 
the  7th  clause,  providing  expressly  in  the  events  which  are  there 
mentioned  for  the  determination  of  the  agreement. 

Now,  my  Lords,  as  I  pointed  out  in  the  course  of  the  argument, 
there  are  really  in  this  agreement  several  risks  which  are  left  alto- 
gether uncovered,  and  as  to  some  of  which  it  was  very  candidly 
admitted  by  the  counsel  for  the  respondents  that  no  provision 
whatever  was  made,  and  that  they  could  not  say  that  there  was  even 
by  implication  any  protection  against  those  risks.  I  will  remind 
your  lordships  of  what  those  risks  are.  On  the  one  hand,  in  the 
first  place,  the  colliery  owner,  the  appellant,  might  sell  the  whole 
of  his  coal  at  ports  other  than  Liverpool,  and  not  send  a  single  ton 
to  Liverpool.  That  is  admitted  on  the  part  of  the  respondents. 
They  do  not  challenge  that  proposition.  They  say  that  that  is  an 
Infirmity  in  the  engagement  between  the  parties.  The  agents 
could  not  have  demurred  or  complained  if  every  ton  of  this  coal 
raised  during  the  seven  years  at  the  Risca  colliery  had  been  sold  at 
Swansea,  or  at  Southampton,  or  at  any  other  port  which  might  be 
suggested.  In  the  next  place,  the  coal  might  have  been  sent  to 
Liverpool,  but  the  principal  might  have  taken  a  view  with  regard 
to  the  price  to  be  obtained  for  it  which  would  have  led  him  to  place 
limits  upon  the  coal,  such  as  to  prevent  the  agents  selling  any  of  it 
in  any  one  particular  year,  and  the  agents  might  have  been  left  in 
that  year  without  any  commission  whatever,  although  having  coal  in 
Btock,  because  the  principal  might  have  thought  it  expedient  to 
hold  the  coal  and  wait  for  better  prices. 

There,  again,  it  is  admitted  that  that  was  in  the  power  of  the 
principal,  and  that  the  agent  could  not  have  complained.  Then, 
again,  I  asked  the  question:  Supposing  the  colliery  owner  had,  by 
reason  of  difficulties  arising  with  the  workers  or  otherwise,  chosen 
to  close  his  colliery  for  a  year,  or  for  several  years,  and  to  wait  for 
better  times  or  a  more  easy  mode  of  working,  could  the  agents 
have  complained?  It  was  said  they  could  not;  that  the  colliery 
owner  must  be  judge  of  that.  He  might  have  taken  that  course 
without  exposing  himself  to  any  proceedings  for  damages. 

But  if  that  is  so,  if  any  one  of  these  three  courses  might  have 
been  adopted,  if  all  the  coal  after  it  was  got  out  of  the  colliery 
might  have  been  sold  elsewhere,  if  the  colliery  might  not 
have  been  worked  at  all,  if  the  prices  required  to  be  fetched 


Chap.  VII]  Khodes  vb.  Forwood.  265 

at  Liverpool  might  have  been  such  that  the  coal  could 
not  have  been  sold  even  after  it  went  to  Liverpool,  ii 
all  that  was  in  the  power  of  the  colliery  owner,  and  it  could 
not  be  contended  that  there  is  any  provision  in  this  contract 
against  any  of  those  risks,  why  is  it  to  be  assumed  with  regard  to 
the  other,  the  fourth  risk,  namely,  the  risk  of  the  colliery  owner, 
not  selling  his  coal  elsewhere  piecemeal,  but  selling  the  colliery 
itself  to  a  purchaser,  that  there  is  an  implied  undertaking  against 
that  one  risk,  although  it  is  admitted  that  there  is  no  undertaking 
at  all  against  any  of  the  other  risks? 

My  Lords,  in  point  of  fact  an  agreement  of  this  kind,  obviously, 
is  made  upon  the  chances  of  risks  of  the  sort  I  have  referred  to, 
and  none  of  which  is  expressed  in  the  agreement.  That  which  is 
in  the  mind  of  the  parties,  the  principal  on  the  one  hand  and  the 
Bgents  on  the  other,  is  supposing  it  to  be  convenient  that  the  busi- 
ness should  go  on  and  the  coal  find  its  way  to  the  port  of  Liver- 
pool, all  that  we  require  to  stipulate  for  is  that,  on  the  on6  hand, 
the  principal  should  have  the  security  that  his  agents  will  be  suffi- 
ciently energetic  to  sell  a  certain  quantity  of  coal  in  the  year,  and, 
on  the  other  hand,  that  the  agents  should  be  able,  if  a  sufficient 
quantity  of  coal  is  not  put  in  their  hands  for  sale  to  terminate  the 
engagement. 

My  Lords,  it  is  obvious,  now  that  the  result  is  seen,  that  it  would 
have  been  a  much  wiser  thing  if  both  parties,  or  at  all  events  if  the 
agents,  in  place  of  stipulating  for  a  mode  of  terminating  the  agree- 
ment which  required  to  work  it  out  the  lapse  perhaps  of  a  year  or 
eighteen  months,  had  stipulated  for  a  more  speedy  power  of  term- 
inating the  agreement,  and  for  the  power  of  taking  coal  for  other 
people  as  agents,  supposing  the  coal  of  the  Risca  Colliery  was  not 
sent  to  them.  That,  however,  was  for  them  to  judge  of.  Your 
Lordships  cannot  reform  an  agreement  because  in  the  result  it 
appears  to  produce  consequences  which  possibly  may  not  have  been 
expected. 

The  simple  point  here  appears  to  me  to  be,  as  it  is  admitted  that 
there  is  no  express  contract  which  has  been  violated:  Can  your  Lord- 
ships say  that  there  is  any  implied  contract  which  has  been  violated? 
I  can  find  none.  I  cannot  find  any  implied  contract  that  the 
colliery  owner  would  not  sell  his  colliery  entire.  Therefore  I  am 
obliged  to  arrive  at  the  conclusion  that  the  decision  of  the  Court 
of  Exchequer  was  correct,  and  that  judgment  in  the  action  should 
be  given  as  the  Court  of  Exchequer  gave  it,  for  the  defendant. 


266  Cases  ok  Agency.  [Book  1 

Lords  Chelmsford,   Hatheebt,   Penzance    and    O'Hagan 

delivered  concurring  opinions. 

Reversed. 

Note— See,  also,  Burton  vs.  Great  Northern  By.  Co.,  9  Ex.  507;  Church- 
ward  vs.  The  Queen,  L.  R.  1  Q.  B.  173;  Ex  parte  Maclure,  L.  R.  5  Ch.  737; 
AspcUn  vs.  Austin,  5  Q.  B.  671;  Dunn  vs.  Sayles,  5  Q.  B.  685;  Orr  vs.  Ward, 
73  m.  818;  McArthur  vs.  Times  Printing  Co.,  ante,  — * 


(Law  Eepobts,  1891,  1  Queen's  Bench  Division,  544.) 

TURNER  vs.  GOLDSMITH. 

('English  Court  of  Appeal,  January,  1891.J 

The  defendant,  a  shirt  manufacturer,  hy  contract  in  writing, 
agreed  to  employ  the  plaintiff,  and  the  plaintiff  agreed  to  serve  the 
defendant  as  agent,  canvasser,  and  traveler  on  the  terms — first, 
that  the  agency  should  be  determined  by  either  party  at  the  end  of 
five  years  by  notice;  secondly,  that  the  plaintiff  should  do  hia 
utmost  to  obtain  orders  for  and  sell  the  various  goods  "  manufac- 
tured or  sold  by  the  defendant  as  should  from  time  to  time  be 
forwarded  or  submitted  by  sample  or  pattern  to  T.''  And  it  was 
further  provided  that  the  plaintiff  should  be  remunerated  by  such 
commission  as  was  specified  in  the  contract.  After  about  two  years 
the  defendant's  manufactory  was  burned  down  and  he  did  not  resume 
business,  and  thenceforth  did  not  employ  the  plaintiff,  who  brought 
an  action  for  breach  of  contract. 

Winch,  Q.   C,  and  H.  Kisch,  for  the  plaintiff. 

B.  Bullen,  for  the  defendant. 

LiNDLET,  L.  J.  This  is  an  action  for  breach  of  contract  in  not 
employing  the  plaintiff  for  the  period  of  five  years.  The  contract 
turns  upon  the  construction  of  the  agreement  entered  into  by 
the  parties,  and  the  application  of  it  in  the  events  which  have 
happened.  The  plaintiff"  wished  to  act  as  traveler  to  the  defendant, 
and  the  defendant  wished  to  engage  him  in  that  capacity.  An 
agreement,  dated  January  31,  1887,  was  entered  into  between  them, 
which  contained  this  recital: 

**  Whereas,  in  consideration  of  the  agreement  of  the  said  A.  S. 
Turner,  the  said  company  "  (t.  e.,  Mr.  Goldsmith,  and  any  partner 


CLap.  VII]  TUENEE  VS.    GOLDSMITH.  267 

he  might  have)  *'  agree  to  employ  the  said  A.  S.  Turner  as  their 
agent,  canvasser,  and  traveler,  upon  the  terms  and  subject  to  the 
stipulations  and  conditions  hereinafter  contained;  and  in  con- 
sideration of  the  premises  the  said  A.  S.  Turner  hereby  agrees  with 
the  said  company  that  he,  the  said  A.  S.  Turner,  shall  and  will 
diligently,  faithfully,  and  honestly  serve  the  said  company  as  their 
agent,  canvasser,  and  traveler,  upon  the  terms  and  subject  to  the 
stipulations  and  conditions  hereinafter  contained.'' 

Stopping  there  we  have  a  clear  agreement  by  the  company  to 
employ  the  plaintiil,  and  by  the  plaintiff  to  serve  the  company — 
and  on  what  terms?  1.  That  the  agency  shall  commence  as  from 
January  31st,  1887,  and  shall  be  determinable  either  by  the  com- 
pany or  Turner  at  the  end  of  five  years  from  the  date  of  the  agree- 
ment upon  giving  such  notice  as  therein  mentioned.  2.  "  The 
said  A.  S.  Turner  shall  do  his  utmost  to  obtain  orders  for  and 
sell  the  various  goods  manufactured  or  sold  by  the  said  company 
as  shall  be  from  time  to  time  forwarded  or  submitted  by  sample  or 
pattern  to  him  at  list  price  to  good  and  substantial  customers." 
Clause  5  is  only  material  because  it  repeats  the  words  "manufactured 
or  sold  by  the  said  company."  The  8th  clause  provides  for  the 
plaintifE's  remuneration  by  a  commission  on  the  goods  sold  by  him. 
The  other  clauses  are  not  material  as  regards  the  question  before 
ns. 

It  was  contended  by  the  defendant  that  the  agreement  did  not 
contain  any  stipulation  that  the  company  should  furnish  the 
plaintiff  with  any  samples,  and  that  there  was,  therefore,  no  agree- 
ment to  do  what  was  necessary  to  enable  him  to  earn  commission. 

The  answer  to  that  is,  that  the  company  would  not  be  employing 
the  plaintiff  within  the  meaning  of  the  agreement  unless  they  sup- 
plied him  with  samples  to  a  reasonable  extent.  Then  it  was  said 
that  there  is  no  undertaking  by  the  company  to  go  on  manufactur- 
ing. It  is  true  that  there  is  no  express,  nor,  so  far  as  I  see,  any 
implied  undertaking  by  the  company  to  manufacture  even  a  single 
shirt;  they  might  buy  the  articles  in  the  market.  The  defendant's 
place  of  business  was  burnt  down;  the  defendant  has  given  up 
business,  and  has  made  no  effort  to  resume  it.  The  plaintiff  tben 
says,  "I  am  entitled  to  damages  for  your  breach  of  the  agreement 
to  employ  me  for  five  years."  The  defendant  pleads  that  the  agree- 
ment was  conditional  on  the  continued  existence  of  his  business. 
On  the  face  of  the  agreement  there  is  no  reference  to  the  place  of 
business,  and  no  condition  as  to  the  defendant's  continuing  to 


268  Oases  on  Agency.  [Book  I 

manufacture  or  sell.      How,  then,  can  such  a  condition  as  tlie 
defendant  contends  for  be  implied? 

It  was  contended  that  the  point  was  settled  by  authority.  I  will 
refer  to  three  cases  on  the  subject.  In  Rhodes  vs.  Furwood,  1  App. 
Gas.  256,  {ante,  — -)  it  was  held  that  an  action  very  similar  to  the 
present  was  not  maintainable.  But  that  case  went  on  the  ground 
that,  there  not  being  any  express  contract  to  employ  the  agent, 
such  a  contract  could  not  be  implied.  In  the  present  case  we  find 
an  express  contract  to  employ  him. 

In  Cowasjee  JVa7iabhoy  vs.  Lallblioy  Vulluhhoy,  Law  Rep.  3  Ind. 
App.  200,  there  was  a  contract  in  a  partnership  deed  to  employ  one 
of  the  partners  during  his  life  as  sole  agent  to  effect  purchases  and 
sales  on  behalf  of  the  partnership  at  a  commission  upon  his  sales. 
The  partnership  was  dissolved  by  decree  of  the  High  Court  of 
Bombay  on  the  ground  that  the  business  could  not  be  ciirried  on  at 
a  profit.  It  was  held  that  the  employment  was  to  sell  on  behalf 
of  the  partnership;  that,  the  partnership  having  come  to  an  end, 
the  employment  ceased,  and  that  the  partner  could  not  claim  any 
compensation,  for  that  a  contract  to  carry  on  the  partnership  during 
the  claimant's  life  under  all  circumstances  could  not  be  implied. 

Taylor  vs.  Caldwell,  3  B.  &  S.  826,  833,  contains  some  observa- 
tions which  are  very  much  in  point.  Blackbuen,  J.,  there  says: 
"  There  seems  no  doubt  that  where  there  is  a  positive  contract  to 
do  a  thing  not  in  itself  unlawful,  the  contractor  must  perform  it 
or  pay  damages  for  not  doing  it,  although  in  consequence  of  unfor- 
seen  accidents  the  performance  of  his  contract  has  become  unex- 
pectedly burdensome  or  even  impossible.  •  *  *  But  this  rule 
is  only  applicable  when  the  contract  is  positive  and  absolute,  and 
not  subject  to  any  condition  either  express  or  implied,  and  there 
are  authorities  which  we  think  establish  the  principle,  that  where 
from  the  nature  of  the  contract  it  appears  that  the  parties  must 
from  the  beginning  have  known  that  it  could  not  be  fulfilled, 
unless  when  the  time  for  the  fulfillment  of  the  contract  arrived, 
some  particular  specified  thing  continued  to  exist,  bo  that,  when 
entering  into  the  contract,  they  must  have  contemplated  such  con- 
tinuing existence  as  the  foundation  of  what  was  to  be  done,  then, 
in  the  absence  of  any  express  or  implied  warranty  that  the  thing 
shall  exist,  the  contract  is  not  to  be  construed  as  a  positive  contract, 
but  as  subject  to  an  implied  condition  that  the  parties  shall  be 
excused  in  case  before  breach,  performance  becomes  impossible 
from  the  perishing  of  the  thing  without  default  of  the  contractor.** 


Chap.  VII]  TuENBB  vs.  Goldsmith.  269 

The  substance  of  that  is,  that  the  contract  will  be  treated  as  sub- 
ject to  an  implied  condition  that  it  is  to  be  in  force  only  so  long  as 
a  certain  state  of  things  continues,  in  those  cases  only  where  the 
parties  must  have  contemplated  the  continuing  of  that  state  of 
things  as  the  foundation  of  what  was  to  be  done.  Here  the  parties 
cannot  be  taken  to  have  contemplated  the  continuance  of  the 
defendant's  manufactory  as  the  foundation  of  what  was  to  be  done; 
for,  as  I  have  already  observed,  the  plaintiff's  employment  was  not 
confined  to  articles  manufactured  by  the  defendant.  The  action, 
therefore,  in  my  opinion,  is  maintainable. 

The  plaintiff,  then,  is  entitled  to  damages,  and  in  my  opinion 
not  merely  to  nominal  damages;  for,  if  I  am  right  in  my  con- 
struction of  the  agreement,  he  has  suffered  substantial  loss.  We 
think,  however,  that  £125  is  too  much,  and  the  plaintiff's  coun- 
sel having  agreed  to  take  our  assessment  of  damages  rather  than 
be  sent  to  a  new  trial,  we  assess  them  at  £50,  and  direct  judgment 
to  be  entered  for  the  plaintiff  for  that  amount, 

Kay  and  Lopes,  L.  JJ.,  concurred. 


(61  MissouBi,  634.) 


LEWIS  vs.   ATLAS   MUTUAL  LIFE    INSURANCE    COM- 
PANY. 

CSupreme  Court  of  Missouri,  January,  1876.) 
Appeal  from  St.  Louis  county  circuit  court. 
Martin  S  Lochland,  for  appellant. 
Cline,  Jameson  &  Day,  for  respondent. 

Wagneb,  J.,  delivered  the  opinion  of  the  court.  This  was  an 
action  to  recover  damages  for  breach  of  a  contract  of  agency.  By 
virtue  of  the  contract  the  plaintiff  became  the  general  agent  of  the 
defendant  for  the  state  of  Illinois,  for  the  term  of  five  years.  By 
the  provision  of  the  contract  the  plaintiff  agreed  to  work  exclu- 
sively for  the  company  during  its  continuance.  He  was  also  bound 
to  work  the  territory  with  a  full  corps  of  energetic  and  reliable 
agents.  He  had  all  the  authority  of  a  general  agent  in  soliciting 
insurance  and  collecting  preniinms.  His  remittances  were  to  be 
on  the  10th  of  each  month,  at  the  time  of  his  monthly  reports.    As 


270  Cases  on  Agency.  [Book  I 

a  compensation  for  his  services  and  expenditures,  he  was  to  have 
35  per  cent  on  first  prerainms,  prior  to  July  1,  1870,  and  30  per 
cent  after  that,  ten  per  cent  on  term  insurance  and  paid  up  poli- 
cies, and  ten  per  cent  on  all  renewals.  These  premiums  on 
renewals  were  to  bepaid  to  him  and  his  heirs  after  the  expiration  of 
the  five  years,  provided  he  continued  to  be  the  agent  of  the  company 
for  that  term,  and  performed  the  conditions  of  the  contract 
required  of  him.  He  was  also  to  have  8250  per  year,  for  rent  of 
office  at  Springfield,  Illinois. 

It  is  averred  in  the  petition  that  the  plaintiff  discharged  the 
duties  of  the  contract  devolving  upon  him,  until  the  2d  day  of 
March,  1872,  at  which  time  the  defendant  discontinued  its  busi- 
ness in  Illinois,  and  failed  and  refused  to  permit  plaintiff  to  further 
prosecute  the  duties  as  agent  there;  that  on  the  24th  of  April,  1872, 
the  defendant  voluntarily  sold  and  transferred  the  whole  of  its 
business  and  its  assets  to  the  St.  Louis  Mutual  Life  Insurance 
Company,  thereby  discontinuing  its  business  and  depriving  itself 
of  the  power  to  keep  and  perform  its  part  of  the  contract. 

The  answer  denies  the  breaches,  and  also  sets  out,  as  an  excuse 
for  the  discontinuance  of  its  business  in  Illinois  and  elsewhere,  that 
on  account  of  the  insufficiency  of  its  assets  and  property,  it  was 
unable  to  comply  with  the  laws  of  Illinois  and  Missouri,  and  that 
on  the  24:th  of  April,  1872,  it  caused  all  its  policies  to  be  re-insured 
in  the  St.  Louis  Mutual  Life  Insurance  Company,  and  that  the 
plaintifi  sanctioned  the  re-insurance.  The  evidence  showed  con- 
clusively, and  about  that  there  is  no  question,  that  the  defendant 
discontinued  its  business  in  Illinois  on  the  2d  of  March  1872,  and 
that  it  sold  out  entirely  to  the  St.  Louis  Mutual  Life  Insurance 
Company  on  the  24th  of  April,  1872. 

It  was  an  unqualified  sale  of  all  its  property  and  rights.  The 
cause  was  tried  before  the  circuit  court  with  a  jury,  and  a  verdict 
was  found  for  the  plaintiff,  upon  which  judgment  was  rendered. 
At  general  term  this  judgment  was  reversed,  and  plaintiff  prose- 
cuted his  appeal  to  this  court. 

There  are  but  two  questions  arising  on  the  record  of  any  import- 
ance, and  the  first  is,  whether  the  insolvency  and  inability  of  the 
company  to  carry  on  its  business,  is  any  legal  excuse  for  the 
breaches  of  the  contract;  and  the  second  relates  to  the  measure  of 
damages.  The  court  held,  by  its  instructions,  that  the  inability 
of  the  defendant  to  coiitiune  its  business,  was  no  excuse  for  its 
breach  of  contract  with  the  plaintiff. 


Chap.  VII]  Lewis  vs.  Insueance  Co.  27] 

It  appeared  at  the  trial  that  the  plaintiff  was  only  permitted  to 
conduct  hi3  agency  about  half  the  time  agreed  upon  by  the  stipula- 
tion. During  that  time  he  procured  a  large  number  of  policies  and 
the  annual  renewals  were  shown  to  be  very  valuable. 

It  is  now  argued  on  behalf  of  the  defendant,  that  by  the  terms 
of  the  contract  sued  on,  the  plaintiff  was  merely  appointed 
agent  for  the  company,  for  the  period  of  five  years,  and,  as  the 
company  did  not  expressly  bind  itself  to  continue  in  business  for 
that  length  of  time,  that  its  inability  to  act  and  execute  the  whole 
stipulation  on  its  part,  constituted  no  breach.  It  is  true  there 
was  no  positive  and  direct  covenant  on  the  part  of  the  company  to 
carry  on  the  business  for  any  definite  time.  But  the  plaintiff 
agreed  to  act  exclusively  for  the  company  for  the  term  of  five  years, 
and  had  he  neglected  or  failed,  he  would  have  been  liable  in  dam- 
ages. If  he  was  bound  for  that  length  of  time,  it  necessarily  fol- 
lows that  the  company  must  also  have  been  bound;  for  mutu- 
ality was  essential  to  the  validity  of  the  agreement. 

It  very  frequently  happens  that  contracts  on  their  face  and  by 
their  express  terms  appear  to  be  obligatory  on  one  party  only;  but 
in  such  cases,  if  it  be  manifest  that  it  was  the  intention  of  the 
parties,  and  the  consideration  upon  which  one  party  assumed  an 
express  obligation,  that  there  should  be  a  corresponding  and  correl- 
ative obligation  on  the  other  party,  such  corresponding  and  cor- 
relative obligation  will  be  implied.  As,  if  the  act  to  be  done  by  the 
party  binding  himself  can  only  be  done  upon  a  corresponding  act 
being  done  or  allowed  by  the  other  party,  an  obligation  by  the 
latter  to  do  or  allow  to  be  done  the  act  or  things  necessary  for  the 
completion  of  the  contract,  will  be  necessarily  implied.  {Pordage 
vs.  Cole,  1  Wm.  Saund.  319;  Churchward  vs.  The  Queen,  6  B.  &  S. 
807;  Blade  vs.  Woodroiu,  39  Md.  194.)  When  the  plaintiff  bound 
himself  to  give  his  exclusive  services  to  the  defendant  for  the  period 
of  five  years,  there  was  a  correlative  and  corresponding  obligation 
upon  the  part  of  the  defendant,  to  give  him  employment  and  allow 
him  to  pursue  and  execute  the  terms  of  the  contract.  This  was 
manifestly  the  intention  of  the  parties.  The  defendant's  insolvency 
or  inability  furnished  no  excuse  for  its  breach  of  the  contract.  Had 
it  desired  to  be  exempted  from  liability  in  such  an  event,  it  should 
have  sti2)ulated  for  the  exemption  upon  the  happening  of  the  con- 
tingency. 

The  criterion  of  damages  would  be  to  ascertain  how  much  the 
plaintiff  has  lost  by  the  defendant's  breach  of  the  contract.     Upon 


272  Oases  on  Agency.  [Book  I 

the  trial  it  was  shown  how  much  he  had  realized  during  the  exist- 
ence of  the  contract,  and  the  estimate  in  the  verdict  seems  to  have 
been  placed  upon  the  past  actual  earnings,  together  with  the  testi- 
mony of  actuaries  as  to  what  probably  would  be  the  value  of 
the  renewals  on  policies  already  obtained.  A  custom  or  usage  has 
sprung  up,  and  exists  with  insurance  companies,  by  which  adjust- 
ments are  made  as  to  the  value  and  renewals  of  policies  for  any 
given  length  of  time.  By  the  use  of  statistical  tables  and  com- 
parisons, a  remarkable  degree  of  accuracy  is  obtained,  and  where  a 
connection  ceases  between  an  agent  and  the  company,  it  is  the  only 
mode  of  ascertaining  or  adjusting  the  agent's  interest.  The  calcu- 
lation by  the  actuary  has  been  reduced  to  scientific  principles,  and 
it  must  be  resorted  to,  else  there  would  be  a  failure  of  justice  on 
one  hand,  or  on  the  other,  the  damages  would  be  purely  specula- 
tive. 

In  Ensworth  vs.  The  New  Yorh  Life  Ins.  Co.,  7  Am.  Law.  Reg. 
(N.  S.)  332;  8.  c.  1  Bigel.  Ins.  Gas.  645,  an  action  was  brought 
against  an  insurance  company  by  the  agent  for  breach  of  contract, 
whereby  the  company  agreed  to  give  the  agent  a  certain  percentage 
on  renewals  of  policies  while  they  continued  in  force.  It  was  held 
that  the  action  was  sustainable,  and  that  the  probable  duration  of 
the  policies  might  be  proved;  and  a  judgment  was  given  for  the 
full  value  of  the  commissions  on  the  renewal  of  premiums  to 
become  due,  duriug  their  estimated  probable  life  time,  after  deduct- 
ing the  costs  of  collection. 

The  plaintiff  was  permitted  to  show  the  amount  of  his  collec- 
tions from  time  to  time,  from  July  1,  18G9,  to  March  1,  1872,  and 
the  amount  of  his  commissions  during  that  time,  both  in  the  aggre- 
gate and  per  month  on  the  average.  These  commissions  were  all 
paid,  and  it  is  evident  from  the  amount  of  the  verdict,  that  the 
jury  must  have  considered  the  commission  on  premiums  for  the 
above  named  period  as  a  fair  criterion  of  what  plaintiff  would 
have  earned  in  the  future,  had  the  contract  not  been  broken. 
Without  some  other  evidence  of  the  probable  amount  of  the  business, 
these  damages  would  be  too  much  of  a  speculative  character.  The 
new  business  might  depend  on  various  circumstances  and  be 
affected  by  numerous  contingencies,  and  these  should  be  shown  as 
entering  into  the  computation  of  damages. 

The  court  refused  to  allow  the  defendant  to  show  that  the 
plaintiff  had  made  a  contract  with  another  insurance  company,. 
and  had  entered  into  its  service  shortly  after  he  ceased  to  be  agent 


Chap.  VII]  Lewis  vs.  Insurance  Co.  273 

for  the  defendant.  It  was  competent  for  the  plaintiff  to  recover 
what  he  had  lost  by  reason  of  the  breach  of  the  contract,  for  the 
residue  of  the  term  of  his  agency,  but  the  defendant  should  have 
been  allowed  to  show  in  mitigation  of  damages,  what  he  was 
making  in  another  company  during  the  remainder  of  the  time 
covered  by  the  contract. 
For  this  reason  we  afi&rm  the  judgment. 


(84  Georgia,  714,  8  L.  E.  A.  410.) 

STANDARD   OIL  COMPANY  vs.   GILBEET. 

(Supreme  Court  of  Georgia,  March,  1890.  J 

Action  on  account  against  Gilbert  &  Co.,  and  plea  of  set-off, 
with  prayer  for  judgment  for  the  excess  claimed  of  plaintiff's 
demand.  Verdict  in  favor  of  the  defendants  for  that  excess.  The 
decision  states  the  facts  of  the  case. 

Denmark,  Adams  <&  Adams,  for  plaintiff. 
Garrard  S  Meldrim,  for  defendants. 

Bleckley,  C.  J.  There  was  no  dispute  or  controversy  as  to 
the  facts.  Their  legal  significance,  nothing  else,  was  for  determi- 
nation, the  parties  having  agreed  that  the  only  question  should  be 
whether  the  contract  could  be  terminated  before  October  1st  by 
the  notice  of  December  15,  1886.  The  presiding  judge  decided 
this  question  in  the  negative,  and  directed  a  verdict  accordingly. 
The  notice  referred  to,  dated  December  15,  1886,  was  in  these 
terms:  *'  Owing  to  the  present  low  prices  of  oil,  and  the  possibility 
of  a  continuance  of  the  same,  we  cannot,  after  December  31,  1886, 
continue  to  allow  you  $75  per  month  rebate,  as  heretofore.  We 
solicit  a  continuance  of  your  orders,  and  will  be  glad  to  allow  you 
jobbers'  rebate,  the  same  as  we  are  now  paying  the  other  merchants.*' 
The  contract  between  the  parties,  as  originally  made,  was  in  writ- 
ing.    It  bore  date  October  1,  11-80. 

The  obligations  which  it  imposed  on  the  agents  (Gilbert  &  Co.) 

were  these:     (1)  To  sell  coal  oil  for  their  principals  at  such  prices 

as  the  latter  might  fix  from  time  to  time;   (v)  to  handle  no  other 

oil  for  the  period  of  one  year  from  the  date  of  the  contract;  (3)  to 

18 


274  Oases  on  Agehoy.  [Book  1 

receive  the  oil  at  their  wharf  and  store  it  in  their  warehouse  with- 
out charge  for  wharfage  or  storage;  (4)  to  pay  on  the  10th  of  each 
month  for  all  oil  sold  during  the  previous  month.  The  obligations 
imposed  upon  the  principals  were:  (1)  To  pay  to  the  agents  $75 
per  month  for  one  year  from  the  date  of  the  contract;  (2)  to  keep 
them  supplied  with  merchantable  oil  at  all  seasons  of  the  year;  (3) 
to  deliver  the  oil  at  their  wharf  or  warehouse;  (4)  to  pay  them  one 
dollar  per  barrel  on  the  excess,  if  any,  over  900  barrels  sold  by 
them  during  the  year  for  which  the  agreement  was  made.  Within 
a  month  or  two  after  the  year  expired,  the  contract  was  renewed, 
as  the  result  of  written  correspondence,  for  a  second  year,  termi- 
nating October  1st,  1882.  No  subsequent  negotiations  took  place, 
but  the  parties  continued  to  deal  in  harmony  with  the  terms  of  the 
written  contract  through  all  subsequent  years  up  to  December  15, 

1886,  when  the  notice  above  recited  was  given.  Afterwards,  and 
until  October  of  the  following  year,  their  dealings  went  on,  but 
the  oil  sent  during  that  period  was  furnished  and  received  without 
prejudice  to  the  claim  of  either  party.  The  credit  of  $75  per 
month  in  the  oil  account,  as  kept  by  the  principals,  ceased  with 
December,  1886;  and  from  that  time  forward  the  credits  entered 
as  rebates  amounted  in  the  aggregate  to  only  $18.84.  In  other 
words,  compensation  for  nine  months,  which  according  to  the 
written  contract  would  be  $675,  was  reduced  to  $18.84.  To  which 
of  these  sums  were  the  agents  entitled?  According  to  its  letter, 
the  notice  did  not  seek  to  terminate  the  contract  in  any  respect 
except  as  to  the  amount  of  compensation. 

It  merely  warned  the  agents  that  the  principals  would  not  pay 
as  they  had  done  theretofore,  but  would  substitute  the  ordinary 
rebates  allowed  the  trade.  It  did  not  propose  to  discharge  the 
agents  from  any  of  their  obligations,  which,  as  we  have  seen,  were 
not  to  handle  any  other  oil,  to  receive  and  store  without  charge, 
and  to  pay  unconditionally  on  the  10th  of  each  month  for  all  oil 
sold  during  the  previous  month.  It  admits  of  no  doubt  that  the 
notice  thus  construed  would  not  be  effective  for  any  purpose.  But 
construing  it,  as  both  parties  probably  did,  to  be  an  effort  to  ter- 
minate the  agency  altogether,  and  to  release  both  parties  from 
any  and  all  obligations  as  to  future  dealings  after  January  Ist, 

1887,  the  question  is,  was  there  a  legal  right  so  to  do?  We  think 
not.  It  is  clear  that  during  the  first  or  second  year  both  parties  were 
bound,  not  from  month  to  month  only,  but  throughout  the  year. 


Chap.  VII]       Standaed  Oil  Co.  vs.  Gilbeet.  375 

as  there  was  an  express  nndertaking  on  the  part  of  the  oil  company 
to  keep  the  agents  supplied  with  oil  at  all  seasons  of  the  year,  and 
to  pay  them  $75.00  per  month  for  one  year.  The  case  does  not 
fall  within  the  principle  of  such  cases  as  Burton  vs.  Great  North' 
em  Wy  Co.,  9  Exch.  507;  Rhodes  vs.  Forward,  L.  R.  1  App.  Gas. 

256  {ante );  and  Orr  vs.    Ward,  73  111.   318,  in  which  it  was 

ruled  that  it  was  not  obligatory  on  the  employer  to  furnish  business 
to  the  agent  or  employ^  throughout  the  whole  period  embraced  in 
the  contract,  the  reason  of  such  ruling  being  that  the  employer 
had  not  stipulated  so  to  do.  Here,  on  the  contrary,  the  stipula- 
tion was  no  less  express  on  behalf  of  one  party  than  of  the  other. 
If  such  a  notice  as  we  are  considering  would  not  have  dissolved 
the  engagement  pending  the  first  or  second  year  of  the  service,  it 
conld  not  have  that  effect  pending  the  seventh  year  unless,  by 
reason  of  not  having  been  expressly  renewed  or  continued  after  the 
second  year,  it  ceased  to  be  a  contract  for  a  whole  year  and  became 
indefinite  as  to  time,  or  a  contract  at  will  only.  Tested  by  the  law  of 
ordinary  hiring,  or  of  master  and  servant,  there  can  be  no  doubt 
that  services  rendered  without  a  new  agreement  after  the  contract 
term  has  expired  are  to  be  compensated  at  the  same  rate,  and  to 
that  extent  the  prior  contract  is  renewed  or  continued  in  force. 
iV.  B.  Iron  Factory  vs.  Richardson,  6  N.  H.  29-ij  Wallace  vs. 
Floyd,  29  Pa.  St.  184,  72  Am.  Dec.  620;  Ranch  vs.  Albright,  36 
Id.  367;  Nicholson  vs.  J'atchin,  5  Cal.  474;  Vail  vs.  Jersey,  etc., 
Co.,  32  Barb.  574;  Weise  vs.  Board  of  Supervisors,  51  Wis.  564. 
And  where  the  term  of  employment  does  not  exceed  one  year,  the 
authorities  seem  to  us  decisive  that  the  prior  contract  is  renewed 
or  continued  for  an  equivalent  time,  as  well  as  at  an  equal  rate. 
**  Where  the  hiring  is  under  a  special  agreement,  the  terms  of 
the  agreement  must  of  course  be  observed.  If  there  be  no 
special  agreement,  but  the  hiring  is  a  general  one  without  men- 
tion of  time,  it  is  construed  to  be  for  a  year  certain.  If  the 
servant  continue  in  the  employment  beyond  that  year,  a  contract 
for  a  second  year  is  implied,  and  so  on.'*  Smith's  Mer.  Law,  266; 
same  by  Pomeroy,  sec.  508.  *' Where  a  person  has  been  employed 
by  another  for  a  certain  definite  term  at  fixed  wages,  if  the  services 
are  continued  after  the  expiration  of  the  term  in  the  same  business, 
it  is  presumed  that  the  continued  services  are  rendered  upon  the 
same  terms;  but  this  is  a  mere  presumption,  which  may  be  over- 
come by  proof  of  a  new  contract,  or  of  facts  and  circumstances 
that  show  that  the  parties  in  fact  understood  that  the  terms  of  the 


276  Cases  on  Agency.  [Book  I 

old  contract  were  not  to  apply  to  the  con  tinned  services."  Wood's 
Master  and  Servant,  sec.  96.  "A  person  who  has  been  pre- 
viously employed  by  the  month,  year  or  other  fixed  interval,  and 
who  is  permitted  to  continne  in  the  employment  after  the  period 
limited  by  the  original  employment  has  expired,  will,  in  the 
absence  of  anything  to  show  a  contrary  intention,  be  presumed  to 
be  employed  until  the  close  of  the  current  interval,  and  upon  the 
same  terms/'  Mechem  on  Agency,  sec.  212.  "  Tacit  relocation 
is  a  doctrine  borrowed  from  the  Eoman  law.  It  is  a  presumed 
renovation  of  the  contract  from  the  period  at  which  the  former 
expired,  and  is  held  to  arise  from  implied  consent  of  parties,  in 
consequence  of  their  not  having  signified  their  intention  that  the 
agreement  should  terminate  at  the  period  stipulated.  •  *  • 
Though  the  original  contract  may  have  been  for  a  longer  period 
than  one  year,  the  renewed  agreement  can  never  be  for  more  than 
one  year,  because  no  verbal  contract  of  location  can  extend  longer.'* 
Fraser  on  Mas.  &  Ser.  58. 

This  last  is  a  Scotch  authority,  but  on  this  question  the  law  of 
Scotland  seems  to  coincide  with  our  own,  and  with  the  law  of 
Louisiana.  See  Alha  vs.  Morarity,  36  La.  An.  680;  Lalande  vs. 
Aldrich,  (la.)  6  So.  Kep.  28;  Tallom  vs.  Mining  Co.,  55  Mich. 
147;  Sines  vs.  Svpts.  of  the  Poor,  58  Mich.  103;  McCnllovgh  Iron 
Co.  vs.  Carpefiter,  67  Md.  554;  Tatterson  vs.  Suffolk  Mfg.  Co., 
106  Mass.  56;  Gapron  vs.  Strout,  11  Nev.  304;  Beeston  vs.  Colhjer, 
4  Bingh.  309. 

In  the  argument  notice  was  taken  of  the  difference  between  the 
English  and  American  rule  as  to  presuming  that  an  indefinite 
hiring  is  for  a  whole  year.  It  was  said  that  in  the  former  country 
this  presumption  holds,  but  in  the  latter  it  does  not.  Wood's  Mas. 
and  Ser.  sec.  136.  We  think,  however,  this  presumption  has 
nothing  to  do  with  the  matter;  for  whether  the  first  hiring  has  its 
duration  fixed  by  express  or  implied  contract,  if  it  be  fixed  in 
either  way,  the  term  (if  not  longer  than  one  year)  admits  of  dupli- 
cation by  tacit  as  well  as  express  agreement.  When  we  have  a 
definite  term  of  service,  no  matter  how  we  get  it,  subsequent  ser- 
vice of  the  same  kind,  where  no  new  contract  is  made  and  nothing 
appo'irs  to  indicate  a  change  of  intention,  may  be  referred  to  the 
previous  understanding  and  to  a  tacit  renewal  of  the  engagement. 

Thus  far  we  have  dealt  with  the  question  without  any  special 
reference  to  the  law  of  agency  as  distinguished  from  that  of  master 
and  servant  generally.     This  was  a  commercial  agency,  compre- 


Chap.  VII]       Standard  Oil  Co.  vs.  Gilbert.  277 

bending  not  only  personal  services,  bat  the  use  of  a  wharf  for 
landing  oil  and  of  a  warehouse  for  storing  it;  and  attended  with  a 
guaranty  of  the  proceeds  of  all  sales,  the  agents  being  obliged  to 
pay  within  ten  days  for  the  oil  sold  in  each  month.  The  agents, 
if  not  del  credere  agents  technically,  were  upon  the  same  footing 
as  such;  they  had  to  pay  for  all  the  goods  they  sold.  No  doubt 
the  power  of  revoking  the  agency  pending  a  current  year's  busi- 
ness existed,  but  the  right  to  revoke  it  without  sufiQcient  cause  did 
not  exist;  and  a  wrongful  revocation  leaves  the  principal  liable  to 
make  reparation  to  the  agent.  Mechem  on  Agency,  §§  209,  614, 
620,  621;  Code,  §  2183. 

Here  no  cause  was  assigned  but  the  low  price  of  oil  and  the 
prospect  of  its  continuance.  Neither  of  the  parties  had  retired, 
or  so  far  as  appears,  wished  to  withdraw  from  business,  and  accord- 
ing to  the  evidence,  fifteen  days'  notice  would  be  too  short  a  time 
within  which  to  make  arrangement  with  other  dealers  for  oil;  to 
do  that  would  require  several  months.  We  can  see  nothing  what- 
ever in  the  record  to  justify  the  revocation  of  the  agency  by  such 
a  notice  as  was  given,  and  we  agree  with  the  presiding  judge  in 
the  opinion  that  the  oil  company  had  no  legal  right  to  terminate 
the  contract  before  October  1,  1887,  without  mutual  consent. 
The  engagement  was  one  from  year  to  year,  and  not  merely  at  the 
will  of  either  party.  There  was  no  contention  that  the  amount 
claimed  by  the  defendants  in  excess  of  the  plaintiffs'  demand  was 
more  than  they  ought  to  recover  upon  their  plea  of  set-off,  if  they 
were  entitled  to  recover  at  all,  and  the  verdict  being  for  that 
amount,  it  was  correct,  and  the  court  did  not  err  in  refusing  a  new 
triaL 

Judgment  affirmed. 


(125  United  States,  339.) 
MISSOURI,  EX  EEL.  WALKER  vs.  WALKER. 

C  United  States  Supreme  Court,  April,  ISSS.J 

In  March,  1881,  the  General  Assembly  of  Missouri  enacted  a 
statute  authorizing  the  fund  commissioners  of  the  State  to  employ 
a  competent  agent  to  prosecute  to  final  settlement  before  Congress 
and  the  proper  departments  at  Washington,  certain  specified  claims 


278  Oases  on  Agency.  [Book  I 

of  the  State  against  the  United  States.  He  was  to  give  security, 
prosecute  the  claims  at  his  own  expense  and  for  his  services  was  to 
have  such  commissions  on  the  amount  collected  by  him  as  might 
be  agreed  upon  between  himself  and  the  fund  commissioners,  not 
to  exceed  a  certain  per  centage.  The  commissioners  appointed 
John  R.  Walker  as  such  agent  and  he  gave  the  security  and  entered 
upon  the  discharge  of  his  duties.  In  March,  1885,  the  statute  was 
repealed  without  any  saving  clause.  Afterwards  a  claim  arose  of 
the  kind  contemplated  by  the  first  statute,  and  Walker  demanded 
it  for  collection  pursuant  to  the  Act  of  1881,  but  it  was  refused  on 
the  ground  that  that  statute  had  been  repealed.  Thereupon 
Walker  applied  to  the  Supreme  Court  of  the  State  for  a  mandamus 
on  the  auditor  to  make  the  delivery,  on  the  ground  that  the  Act  of 
1885  impaired  the  obligation  of  his  contract  with  the  State  under 
the  Act  of  1881,  and  was  therefore  void.  The  court  denied  the 
writ,  holding  that  his  employment  was  *'  one  of  agency,  pure  and 
simple,''  which  the  State  could  revoke  at  will,  as  it  did  by  the 
repealing  act.  For  a  review  of  the  judgment  this  writ  of  error  was 
brought. 

Wm.  M.   Williams,  for  plaintiff  in  error, 

B.  Q.  Boone,  Attorney  General  of  Missouri,  for  defendant  in 
error. 

Waite,  0.  J.  (After  stating  the  facts.)  The  fund  commis- 
sioners were  only  authorized  to  employ  an  agent  for  the  State,  and 
to  agree  with  him  as  to  the  commissions  he  should  receive  on  the 
amount  collected,  as  full  compensation  for  his  services  and  all 
expenses  incurred  by  him  in  that  behalf.  This  they  did  and  there 
can  be  no  doubt  that  the  agency  thus  created  was  withdrawn  by  the 
repealing  act  of  1885,  unless  a  consideration  was  given  for  it,  or  it 
was  BO  coupled  with  an  interest  in  the  subject  matter  of  the 
agency,  that  is  to  say,  in  the  claims  to  be  collected,  as  to  make  it 
irrevocable. 

There  was  no  consideration  in  money  paid  for  the  employment. 
The  agreement  to  prosecute  the  claims  faithfully  is  no  more  than 
would  be  implied  in  law  from  the  acceptance  of  the  employment, 
and  the  provision  for  the  payment  of  expenses  is  only  a  declaration 
that  the  commissions  stipulated  for  shall  be  in  full  for  services  and 
disbursements.  There  is  nothing,  therefore,  in  the  consideration 
for  the  employment  to  prevent  this  agency  from  being  revoked 
like  any  other. 


Chap.  VII  ]  Missouri  vs.  "Walkee.  279 

The  interest  implied  with  a  power,  to  make  it  irrevocable,  must 
be  an  interest  in  the  thing  itself.     As  wat,  said  by  Chief  Justice 

Marshall  in  Hunt  vs.  Eousmanier,  8  Wheat.  174,  204  {post, ), 

"  the  power  must  be  engrafted  on  an  estate  in  the  thing.  The 
words  themselves  seem  to  impart  this  meaning.  *A  power, 
coupled  with  an  interest,'  is  a  power  which  accompanies  or  is  con- 
nected with  an  interest.  The  power  and  the  interest  are  united  in 
the  same  person.  But  if  we  are  to  understand  by  the  word  *  inter- 
est,' an  interest  in  that  which  is  to  be  produced  by  the  exercise  of 
the  power,  then  they  are  never  united.  The  power  to  produce  the 
interest  must  be  exercised,  and  by  its  exercise  is  extinguished.  The 
power  ceases  when  the  interest  commences  and  therefore  cannot  in 
accurate  law  language,  be  said  to  be  *  coupled  '  with  it.''  Such  is 
undoubtedly  the  rule. 

Here  there  was  no  actual  assignment  of  the  claims  or  any  part 
of  them.  Walker  had  no  authority  under  his  employment  to  take 
the  money  from  the  United  States  except  to  the  extent  of  his  com- 
missions. The  vouchers  and  evidences  of  debt  were  not  turned 
over  to  him.  All  he  could  do  was  to  present  the  claims  in  the 
name  of  the  State  and  as  its  representative.  He  could  not  even 
get  the  vouchers  or  other  evidences  of  debt  which  were  necessary 
for  the  establishment  of  the  claim,  by  application  to  the  proper 
custodian,  but  must  go  to  the  governor  of  the  State  for  his  written 
order  directing  their  delivery  to  him. 

There  is  nothing  whatever  in  the  transaction,  from  the  begin- 
ning to  the  end,  which  shows  an  intention  on  the  part  of  the  legis- 
lature to  part  with  any  interest  in  or  control  over  the  claims, 
except  to  the  extent  of  the  commissions  of  the  agent  after  they  had 
been  earned.  Walker  was  given  no  power  to  compromise  any  claim. 
All  he  could  do  was  to  establish  the  claim,  and  when  the  state  was 
ready  to  pay  it,  take  his  commissions.  Clearly  such  an  agency  is 
not  irrevocable  in  law,  because  of  its  being  coupled  with  an  inter- 
est in  the  thing  to  be  collected.  If  the  vouchers  and  other  evi- 
dences of  debt  had  actually  been  delivered  to  him  for  collection, 
and  he  had  expended  time  or  money  under  his  employment,  in 
endeavoring  to  make  the  collection,  a  revocation  of  his  authority 
might  not  require  him  to  return  the  papers  he  held,  until  be  waa 
compensated  for  what  he  had  already  done;  but  that  is  not  the 
question  here,  because  the  purpose  of  this  suit  is  to  get  possession 
of  new  vouchers,  not  to  assert  a  lien  upon  such  as  he  already  had 
in  hand. 


280  Oases  on  AGEifCT.  [Book  1 

There  is  nothing  in  the  cases  of  Hall  vs.  Wisconsin,  103  IT.  S.  5, 
or  of  Jeffries  vs.  Mutual  Life  Insurance  Company,  110  U.  S.  305, 
in  conflict  with  this.  In  Hall's  case  the  question  was  whether  his 
employment  was  an  office  or  under  a  contract  for  work  and  labor, 
and  it  was  held  to  be  under  a  contract,  because  although  he  was 
appointed  a  commissioner  to  make  a  *'  geological,  miueralogical 
and  agricultural  survey  of  the  state,''  the  law  providing  for  the 
survey  and  for  his  appointment  required  that  the  governor  "  make 
a  written  contract "  with  him  for  the  performance  of  his  allotted 
work,  and  *'  the  compensation  therefor;"  and  it  also  declared  that 
**  such  contract  shall  expressly  provide  that  the  compensation  to 
such  commissioner  shall  be  at  a  certain  rate  per  annum,  to  be 
agreed  upon,  and  not  exceeding  the  rate  of  two  thousand  dollars 
per  annum,  and  that  payment  will  be  made  only  for  such  part  of 
the  year  "  as  he  may  actually  be  engaged  in  the  discharge  of  his 
duty  as  such  commissioner.  The  contract  actually  entered  into 
was  by  its  terms  "  to  continue  till  the  third  day  of  March,  1863, 
unless  the  said  Hall  should  be  removed  for  incompetency  or  neglect 
of  duty,  *  *  *  or  unless  a  vacancy  shall  occur  in  his  office 
by  his  own  act  or  default.*' 

In  deciding  the  case  it  was  said:  "In  a  sound  view  of  the  subject, 
it  seems  to  us  that  the  legal  position  of  the  plaintiff  in  error  was 
not  materially  different  from  that  of  parties  who,  pursuant  to  law, 
enter  into  stipulations,  limited  in  point  of  time,  with  a  state,  for 
the  erection,  alteration  or  repair  of  public  buildings,  or  to  supply 
the  officers  or  employes  who  occupy  them  with  fuel,  light,  stationary, 
and  other  things  necessary  for  the  public  service."  There  was  in 
that  case  a  positive  contract  by  the  State  for  employment  in  a  par- 
ticular service,  for  a  particular  term,  made  under  the  authority  of 
law;  and  because  it  was  such  a  contract  the  State  could  not,  any 
more  than  a  private  individual,  rescind  it  at  will.  The  employ- 
ment in  this  case,  however,  has  no  such  provision.  There  is  no 
agreement  as  to  time,  and  the  matter  stands  precisely  as  that  of 
Hall  would,  if  a  statute  had  been  passed  authorizing  a  geological, 
miueralogical  and  agricultural  survey  of  the  State,  and  he  had  been 
employed  to  make  it  and  receive  for  his  services  a  compensation 
dependent  on  the  amount  of  work  actually  done^  or  the  time  actu- 
ally employed.  It  would  hardly  have  been  contended  that  under 
such  a  contract  the  State  could  not  stop  the  survey  and  require  Hall 
to  quit  work  at  any  time  it  pleased.  The  difference  between  the 
two  cases  is  the  difference  in  the  two  contracts. 


Chap.  VII]  MissouEi  vs.  Walkee.  281 

In  Jeffries'  case  the  contract  was  by  an  administrator  of  a 
deceased  person's  estate  with  a  firm  of  attorneys  to  prosecute  a 
doubtful  claim,  "for  a  portion  of  the  proceeds,  with  full  power  to 
compromise  it  as  they  should  please,"  and  we  held  that  such  an 
agency  was  not  revoked  by  the  death  of  the  administrator  who 
made  the  contract  and  the  appointment  of  another  in  his  place. 
The  question  was  as  to  the  validity  of  a  compromise  made  by 
the  attorneys,  on  that  authority,  after  the  death  of  the  first  admin- 
istrator. In  the  present  case  there  was  no  authority  to  compromise. 
Walker  could  do  nothing  to  establish  the  claim.  He  could  not 
even  receive  the  money  belonging  to  the  state  after  he  had  got  the 
allowance  of  the  claim  by  the  United  States. 

"We  find  no  error  in  the  record  and  the  judgment  is  affirmed. 


(65  Mabtland,  359,  57  Am.  Rep.  331.) 

NOKTON  vs.   COWELL. 

CCourt   of  Appeals   of  Maryland,   April,    1886.J 

Rolert  Riddell  Brown,  for  the  appellant. 
Richard  Hamilton,  for  the  appellee. 

Alvey,  0.  J.,  delivered  the  opinion  of  the  court.  This  action 
was  brought  to  recover  wages  alleged  to  be  due  from  the  appellant 
to  the  appellee  on  a  contract  of  hiring. 

The  appellant,  residing  at  Kio  de  Janeiro,  in  South  America, 
was  owner  of  certain  ships,  trading  to  and  from  ports  in  the  United 
States;  and  the  appellee  having  been  in  the  service  of  the  appellant 
for  eighteen  months  or  more  prior  to  the  20th  of  August,  1883,  the 
latter  addressed  to  the  appellee  the  following  letter,  which  was 
given  in  evidence  as  proof  of  the  contract  of  hiring  sued  on: 

Kio  de  Janeeio,  20th  August,  1883. 
Capt.  John  Cowetl: 

Dear  Sir:  Your  conduct  during  the  last  eighteen  (18)  months 
that  you  have  been  in  my  employ  has  given  me  great  satisfaction, 
and  now,  as  I  put  all  my  ships  under  my  own  flag,  I  appoint 
you  superintendent  of  all  my  ships,  both  here  and  at  any  ports  in 
U.  S.  America;  and  you  will  please  help  all  my  captains  to  get 
quiJik  dispatch,  and  also  see  that  no  damaged  or  bad  cargo  is  ship- 


282 


Oases  on  Agency.  [Book  I 


ped,  as  all  the  lumber  cargo  are  shipped  on  my  ac.  You  have 
my  permission  to  take  your  family,  or  any  of  them,  in  any  of  my 
ships,  whenever  it  may  suit  your  convenience,  from  U.  S.  to  Rio 
and  back,  and  your  wages  will  bo  (^100)  one  hundred  dollars  per 
month,  with  all  hotel  and  other  expenses;  and  if  you  give  me  sat- 
isfaction at  the  end  of  the  first  year,  I  will  increase  your  salary 
accordingly.  I  am,  dear  sir,  yours  truly, 

A.  M.  NoETON,  Ship-owner. 

It  is  admitted  that  the  appellee  accepted  the  proposal  contained 
in  the  letter,  and  continued  in  the  service  of  the  appellant  for  about 
three  months  thereafter,  under  the  new  terms  of  employment, 
when  he  was  discharged  from  further  service,  without  legal  cause 
therefor,  as  contended  by  him,  but  was  paid  his  wages  down  to  the 
time  of  his  discharge.  And  having  thus  been  illegally  discharged, 
as  contended  by  the  appellee,  he  brought  this  action  to  recover  of 
the  appellant  the  balance  of  the  year's  wages,  upon  the  theory  that 
the  letter,  and  the  acceptance  of  the  terms  thereof,  constituted  a 
contract  of  hiring  for  one  year,  at  the  rate  of  1100  per  month,  and 
expenses,  and  therefore  the  discharge  of  the  appellee  was  not  justi- 
fied by  the  terms  of  the  contract,  it  being  conceded  that  he  had  fur- 
nished no  justifiable  cause  of  discharge. 

As  the  case  is  presented  on  this  appeal,  the  only  question  is 
whether  the  letter  in  evidence,  by  legal  construction,  constituted  a 
contract  of  yearly,  or  monthly,  hiring,  or  a  contract  of  hiring  at 
will  merely.  The  court  below  held,  and  so  instructed  the  jury,  that 
the  letter,  and  its  acceptance,  by  legal  construction,  created  a  con- 
tract of  hiring  for  one  year;  and  in  that  construction  this  court 
concurs. 

As  will  be  observed,  there  is  no  express  limitation  in  the  letter 
as  to  the  term  of  service,  though  the  wages  were  to  be  at  the  rate 
of  $100  per  month.  But  stipulations  for  the  payment  of  wages 
quarterly,  monthly,  or  even  weekly,  are  not  inconsistent  with  a  yearly 
hiring.  Fawcclt  vs.  Cash,  5  B.  &  Ad.  908.  For,  as  said  by  Lord 
Kenyon,  C.  J.,  in  the  case  of  The  King  vs.  Birdbrooke,  4  T.  R. 
245,  **  whether  the  wages  be  to  be  paid  by  the  week  or  the  year 
can  make  no  alteration  in  the  duration  of  the  service,  if  the  con- 
tract were  for  a  year.*'  llere  the  written  agreement  furnishes  a 
clue  to  the  real  intention  of  the  parties,  when  it  says,  "  if  you  (the 
appellee)  give  me  satisfaction  at  the  end  of  the  first  year,  I  will 
Increase  your  salary  accordingly."    Why,  at  the  end  of  the  year. 


Ohap.  VII]  NoETON  vs.  Cowell.  283 

rather  than  at  any  other  time,  if  the  contract  was  monthly,  or  only 
at  will,  as  contended  by  the  appellant.  This  passage  of  the  letter, 
taken  in  connection  with  the  situation  of  the  parties,  and  the  nature 
of  the  service  to  be  performed,  would  seem  to  leave  no  room  for 
doubt  as  to  what  was  really  contemplated  by  the  contract  of  employ- 
ment. It  would  not  be  reasonable  to  suppose  that  it  was  intended 
that  the  appellee  should  have  the  right  to  terminate  the  contract 
at  will,  and  thus  to  imperil  the  interests  of  his  absent  principal; 
and  if  such  right  was  not  designed  to  be  possessed  by  the  appellee, 
there  is  no  principle  that  would  justify  the  court  in  holding  that 
such  right  could  be  exercised  by  the  appellant  with  impunity,  as  there 
is  nothing  in  the  contract,  or  the  nature  of  the  employment,  to  indi- 
cate such  want  of  mutuality.  Being  of  opinion  that  the  contract 
was  of  a  yearly  hiring,  we  shall  affirm  the  judgment  of  the  court 
below. 

Judgment  afSrmed. 


(141  Unitei  States,  627.) 

WILCOX  &  GIBBS    SEWING    MACHINE    COMPANY   ys. 

EWING. 

(Supreme  Court  of  the  United  States,  November,  1891.  J 

Action  by  Ewing  to  recover  damages  for  an  alleged  breach  of 
contract  by  the  company.  Yerdict  for  plaintiff  and  defendant 
brings  error.  By  a  contract  between  the  parties  made  in  May, 
1867,  Ewing  had  been  the  company's  agent  for  the  sale  of  its 
machines  in  Philadelphia  and  vicinity.  In  October,  1874,  all  pre- 
vious contracts  were  abrogated  and  a  new  one  entered  into,  of 
which  the  important  parts  are  as  follows:  "The  first  party  hereby 
appoints,  subject  to  conditions  hereinafter  expressed,  the  second 
party  its  exclusive  vendor  for  its  sewing  machines,  parts  and 
attachments,  in  and  for  the  following  named  territory,  to  wit:  the 
city  of  Philadelphia,  Pa.,  and  the  adjacent  country  lying  within  a 
radius  of  ten  miles  from  the  city  hall  of  said  city.  The  second 
party  hereby  accepts  said  appointment."  Then  follow  clauses  as 
to  territory  and  prices.  "  Machines  or  parts,  needles  or  attach- 
ments counterfeiting,  infringing  or  in  any  degree  trespassing  upon 
ours,  or  in  any  effect  trading  upon  our  name,  must  not  be  dealt  in 


284  Cases  on  Agency.  [Book  I 

or  countenanced  by  second  party,  but  it  is  hereby  agreed  tliat  big 
time,  attention  and  abilities  must  primarily  be  devoted  to  the  for- 
warding of  the  interest  of  the  party  of  the  first  part.  If,  for  any 
reason,  at  any  time  the  connection  hereby  formed  shall  cease,  the 
first  party  shall  have  the  right  to  buy  back  of  its  goods  sold  to 
second  party  all  such  goods  as  first  party  may  select,  first  party  to 
pay  therefor  same  prices  as  charged  second  party." 

*'  Second  party  agrees  to  purchase  from  first  party  during  the 
year  1875  at  least  120,000,  net,  worth  of  machines,  parts  and 
accessories,  to  be  taken  in  equal  monthly  parts,  and  to  be  paid  for 
as  stated  therein.  Violation  of  the  spirit  of  this  agreement  shall  be 
sufficient  cause  for  its  abrogation.  Permission  is  granted  second 
party  to  trade  in  all  former  territory  occupied  by  him  until  such 
time  as  first  party  shall  form  other  connections  for  occupying  the 
territory  not  contained  in  that  designated  therein  as  belonging  to 
second  party. 

**And  it  is  agreed  and  understood  that  this  appointment  or 
agency  is  not  salable  or  transferable  by  second  party  without 
obtaining  the  written  consent  of  first  party,  but  such  consent  is  to 
be  given  providing  the  purchaser  or  other  person  is  acceptable  to 
said  first  party.  First  party  consents  to  renew  and  extend  second 
party's  note,  $10,000,  maturing  January  23-26,  1875,  for  one  year 
from  said  date,  without  interest,  upon  consideration  of  this  agree- 
ment alone.  All  contracts  or  agreements  made  prior  to  the  date 
first  written  alone  are  hereby  nullified  and  satisfied." 

In  October,  1879,  the  company  gave  Ewing  notice  that  at  the 
expiration  of  sixty  days  it  would  terminate  the  contract,  and  did 
80,  Ewing  not  consenting. 

Wayne  Mac  Veagh  and  A.  H.  Winter steen,  for  plaintiff  in  error. 
Frank  P.  Frichard  and  John  0.  Johnson,  for  defendant  in  error. 

Mr.  Justice  Haelan,  after  stating  the  case,  delivered  the  opin- 
ion of  the  court. 

If  this  action  was  based  upon  the  agreement  of  1867,  there  would 
be  some  ground  for  holding  that  the  company  was  obliged,  by  that 
agreement,  to  continue  Ewing  as  agent  so  long  as  he  performed  its 
stipulations.  We  are  only  concerned,  however,  with  the  agree- 
ment of  1874,  which  materially  differs  from  that  of  18G7,  and 
expressly  provides  that  all  prior  contracts  between  the  parties  "are 
hereby  nullified  and  satisfied. '*  It  is  only  for  a  breach  of  the  contract 
of  1874  the  plaintiff  sues.     Looking  at  all  the  provisions  of  the  last 


Chap.  VII]     Sewing  Machine  Oo.  vs.  Ewlbto.  285 

agreement,  it  is  clear  that  Ewing — although  bound,  while  the  con- 
tract was  in  force,  to  devote  his  time,  attention  and  abilities,  pri- 
marily, to  the  interests  of  the  company,  within  the  territory 
allotted  to  him — was  not  compelled  to  continue  in  its  service  for 
any  given  number  of  years,  at  least  after  1875,  or  indefinitely,  but 
was  at  liberty  after  that  year,  if  not  before,  upon  reasonable  notice, 
to  surrender  his  position  and  quit  its  service,  subject  to  the  com- 
pany's right  to  buy  back  such  of  its  goods  sold  to  him  as  it  might 
select,  and  for  the  prices  at  which  they  were  charged  to  him.  He 
may  have  been  entirely  satisfied  with  the  manner  in  which  the 
company  acted  towards  him,  and  yet  may  have  preferred — it  is 
immaterial  for  what  reason — not  to  remain  in  its  service  after  1875, 
or  to  continue  in  the  business  of  selling  sewing  machines.  "We 
specify  the  year  1875,  because  Ewing  agreed  to  purchase,  during 
that  year,  $20,000  of  the  company's  machines.  But  he  did  not 
bind  himself  to  purchase  any  given  number  during  subsequent 
years.  It  would  be  a  very  hard  interpretation  of  the  contract  to 
hold  that  he  was  bound  by  the  agreement  of  1874,  to  serve  the  com- 
pany within  the  designated  territory  so  long  as  it  kept  the  con- 
tract, and  was  satisfied  with  him  as  its  agent.  None  of  its  pro- 
visions would  justify  such  an  interpretation. 

li  Ewing  had  the  privilege,  upon  reasonable  notice,  oi  severing 
the  connection  between  him  and  the  company  after  1875,  upon 
what  ground  could  a  like  privilege  be  denied  the  company  if  it 
desired  to  dispense  with  his  services?    lie  contends  that  his  life, 
or  the  continuance  of  the  company  in  business,  was  the  shortest 
duration  of  the  contract,  consistently  with  its  provisions,  provided 
he  did  his  duty.     This  position  is  untenable.     His  appointment 
was  made  and  accepted  subject  to  the  conditions  expressed  in  the 
agreement.     No  one  of  those  conditions  is  to  the  effect  that  so  long 
as  he  devoted  his  time,  attention  and  abilities  to  the  company's 
business,  he  should  retain  his  position  as  its  exclusive  vendor, 
within  the  territory  named,  without  regard  to  its  wishes.     If  the 
parties  intended  that  their  relations  should  be  of  that  character,  it 
was  easy  to  have  so  stipulated.     The  only  part  of  the  contract  that 
gives  color  to  the  theory  for  which  the  plaintiff  contends,  is  the 
part  declaring  that  a  violation  of  the  spirit  of  the  agreement  "shall  be 
sufficient  cause  for  its  abrogation."    This  clause,  it  may  be  sug- 
gested, was  entirely  unnecessary  if  the  parties  retained  the  right  to 
abrogate  the  contract  after  1875,  at  pleasure,  and  implies  that  it 
could  be  abrogated  only  for  sufficient  cause,  of  which,  in  case  of 


286  Cases  on  Aqekcy.  [Book  I 

suit,  the  jnry,  under  the  guidance  of  the  court  as  to  the  law,  must 
judge  in  the  light  of  all  the  circumstances.  We  cannot  concur  in 
this  view.  The  clause  referred  to  is  not  equivalent  to  a  specific 
provision  declaring,  affirmatively,  that  the  contract  should  continue 
in  force  for  a  given  number  of  years,  or  without  limit  as  to  time, 
unless  abrogated  by  one  or  the  other  party  for  sufficient  cause.  It 
was  inserted  by  way  of  caution,  to  indicate  that  the  parties  were 
bound  to  observe  equally  the  spirit  and  the  letter  of  the  agreement 
while  it  was  in  force. 

There  was  some  discussion  at  the  bar  as  to  whether  Ewing  was, 
strictly,  an  agent  of  the  company.  We  think  he  was.  He  was 
none  the  less  an  agent  because  of  his  appointment  as  "  exclusive 
vendor  "  of  the  defendant's  machines  within  a  -particular  territory, 
or  because  of  the  peculiar  privileges  granted  to  or  the  peculiar 
restrictions  imposed  upon  him.  One  clause  of  the  contract  pro- 
hibits him  from  soliciting  trade,  directly  or  indirectly,  in  the  ter- 
ritory'*  of  other  agents; "  another,  that  he  will  bind  *'all  sub- 
vendors  or  agents "  to  sustain  the  established  retail  prices  of  the 
company;  and  still  another  imposes  restrictions  upon  the  sale  of  his 
"appointment  or  agency."  The  agreement  constituted  him  the 
sole  agent  of  the  company  for  the  sale  of  its  machines  within  a  cer- 
tain territory.  It  is  true  that  the  machines  he  undertook  to  sell 
were  to  be  purchased  by  him  from  the  company  at  a  large  discount. 
But  he  could  not  sell  them  by  retail  below  the  regular  retail  prices. 
This  arrangement  was  the  mode  adopted  to  protect  the  company's 
interests,  and  to  secure  the  plaintiffs  such  compensation  for  his 
services  as  would  induce  him  to  devote  his  time,  attention  and 
abilities  to  the  company's  interests.  He  was  still  a  mere  agent  to 
sell  such  machines  as  might  be  delivered  to  him  under  the  contract. 
We  perceive  nothing  in  the  agreement  of  1874  to  take  the  case  out 
of  the  general  rule  that  "  the  principal  has  a  right  to  determine  or 
revoke  the  authority  given  to  his  agent  at  his  own  mere  pleasure; 
for,  since  the  authority  is  conferred  by  his  mere  will,  and  it  is  to  be 
executed  for  his  own  benefit  and  his  own  purposes,  the  agent  cannot 
insist  upon  acting  when  the  principal  has  withdrawn  his  confidence, 
and  no  longer  desires  his  aid."     Story  on  Agency,  §§  462,  463. 

So  far  as  the  company's  power  of  revocation  is  concerned,  the 
case  is  not  materially  different  from  what  it  would  be  if  the  plaint- 
iff had  agieed  to  sell  such  machines  as  were  delivered  to  him  at  the 
Established  retail  prices,  receiving,  as  compensation  for  his  services, 
the  difference  between  those  prices  and  the  amount  he  agreed  to 


Chap.  VII]     Sewing  Machine  Co.  vs.  Ewinq.  287 

pay  for  them  under  the  contract  of  1874.  In  either  cace,  his  rela- 
tion to  the  company  would  be  one  of  agency,  that  could  be  termi- 
nated at  its  will  or  by  renunciation  upon  hia  part,  at  least  after 
1875.  Of  course  the  revocation  by  the  principal  of  the  agent's 
authority  could  not  injuriously  affect  existing  contracts  made  by 
the  latter  under  the  power  originally  conferred  upon  him. 

For  the  reasons  stated  the  court  below  erred  in  not  instructing 
the  jury,  as  requested,  to  return  a  verdict  for  the  defendant. 

The  judgment  is  reversed,  with  directions  to  grant  a  new  trial 
and  for  further  proceedings  consistent  with  this  opinion. 


(23  Louisiana  Annual,  395.) 

JACOBS  V.  WARFIELD. 

(Supreme  Court  of  Louisiana,  May,  1871.  J 

Saucier  (S;  Michinard,  for  plaintiff  and  appellee. 
John  H.  lisle y,  for  defendant  and  appellant. 

Wyly,  J.  The  defendant  has  appealed  from  the  judgment  con- 
demning her  to  pay  the  plaintiff  $2,610  for  violating  the  contract 
which  she  made  with  him  on  the  sixth  day  of  October,  1865,  and 
for  money  advanced  by  him  for  her  benefit  under  said  contract.  In 
this  contract  the  plaintiff  was  employed  as  an  agent  to  superintend 
all  the  business  of  the  defendant  in  the  parish  of  St.  John  the 
Baptist,  in  relation  to  certain  wild  lands  which  the  defendant 
owned  in  said  parish,  and  he  was  especially  authorized  to  take 
charge  of  and  exercise  general  control  over  said  property;  to  pre- 
vent the  commission  of  trespass  or  wastes  upon  said  lands,  and  to 
appear  in  court  to  prosecute  and  defend  all  suits  in  reference 
thereto,  as  occasion  might  require,  '*with  the  distinct  understand- 
ing that  no  other  charge  shall  be  made  by  the  said  Jacobs  for  his 
services  in  taking  charge  of  the  said  lands,  and  removing  therefrom 
all  trespassers,  than  one-fourth  interest  in  the  revenue  derived 
from  the  sale  of  wood  and  timber  cut  therefrom  by  said  Jacobs  and 
his  employes,  as  herein  expressed,  which  shall  be  a  full  and  adequate 
remuneration  and  compensation  for  all  services  that  he,  said 
Jacobs,  may  render  the  said  Mrs.  Warfield  under  and  by  virtue  of 
this  procuration.'* 


288  Cases  ox  Age2scx.  [Book  I 

It  was  further  stipnlated  tliat  the  said  agent  wr.s  not  to  institute 
proceedings  against  any  trespassers  without  first  obtaining  the 
written  consent  of  the  defendant;  and  also,  that  the  said  Jacobs 
was  in  no  wise  to  disturb  or  interfere  with  such  persons  as  might 
have  the  written  sanction  of  Mrs.  Warfield  to  be  on  said  lands  and 
cut  and  sell  timber  therefrom. 

There  was  no  period  fixed  in  the  act  as  the  term  for  which  the 
Baid  Jacobs  was  employed. 

Under  this  contract  we  think  the  defendant  had  the  right  to  dis- 
charge her  agent  and  employ 6  whenever  she  saw  fit  to  do  so.  From 
the  evidence,  we  are  satisfied  that  the  plaintiff  did  not  comply  with 
his  contract,  and  the  defendant  had  good  cause  to  discharge  him. 
His  demand  for  damages  for  breach  of  contract  must,  therefore, 
fail.  It  appears,  hov.eyer,  that  the  plaintiff  paid  ten  dollars  to  an 
attorney  and  twenty-five  dollars  costs  in  a  suit  for  the  benefit  of 
the  defendant,  and  we  think  he  was  justifiable  in  doing  so  under 
the  act  of  procuration.  For  these  sums  he  should  have  judgment. 
The  demand  for  the  other  sums  which  the  plaintiff  claims  to  have 
paid  for  the  defendant  pursuant  to  the  contract  is  not  supported 
by  the  evidence. 

It  is  therefore  ordered  that  the  judgment  herein  be  reduced  to 
thirty-five  dollars,  and  as  thus  amended  that  it  be  affirmed.  It  ia 
further  ordered  that  the  plaintiff  pay  costs  of  this  appeal. 

Kehearing  refused. 


(34  MlI^NESOTA,   98.) 

AHERN  vs.  BAKER. 

^Supreme  Court  of  Minnesota,  July,  1885.) 

Linden  &   Williams,  for  appellant. 
Berryhill  &  Davison,  for  respondent. 

Vandeebuegh,  J.  The  defendant,  on  the  9th  day  of  Septem- 
ber, 1884,  specially  authorized  one  Wheeler,  as  his  agent,  to  sell 
the  real  property  in  controversy,  and  to  execute  a  contract  for  the 
sale  of  the  same.  He  in  like  manner  on  the  same  day  empowered 
one  Fairchild  to  sell  the  same  land,  the  authority  of  the  agent  in 
each  instance  being  limited  to  the  particular  transaction  named. 
On  the  same  day,  Wheeler  efiiccted  a  sale  of  the  land,  which  waa 


Chap.  VII]  Ahern  vs.  Baker.  289 

consummated  by  a  conveyance.  Subsequently,  on  the  lOtb  day 
of  September,  Faircliild,  as  agent  for  defendant,  and  having 
no  notice  of  the  previous  sale  made  by  Wheeler,  also  contracted  to 
sell  the  same  land  to  this  plaintiff,  who,  upon  defendant's  refusal 
to  perform  on  his  part,  brings  this  action  for  damages  for  breach 
of  the  contract. 

This  is  a  case  of  special  agency,  and  there  is  nothing  in  the  case 
going  to  show  that  the  plaintiff  would  be  estopped  from  setting 
up  a  revocation  of  the  agency  prior  to  the  sale  by  Fairchild.  A 
revocation  may  be  shown  by  the  death  of  the  principal,  the  destruc- 
tion of  the  subject  matter,  or  the  determination  of  his  estate  by  a 
sale,  as  well  as  by  express  notice.  The  plaintiff  had  a  right  to 
employ  several  agents,  and  the  act  of  one  in  making  a  sale  would 
preclude  the  others  without  any  notice,  unless  the  nature  of  his 
contract  with  them  required  it.  In  dealing  with  the  agent,  the 
plaintiff  took  the  risk  of  the  revocation  of  his  agency.     1  Pars. 

Oont.  71. 

Order  affirmed  and  case  remanded. 


(42  Wisconsin,  311,  24  Am.  Rep.  415.) 

DIEEINGER  vs.  MEYER. 
f Supreme  Court  of  Wisconsin,  August,  1887.) 

Action  for  damages  for  breach  of  a  contract  of  service.  The 
plaintiff  was  employed  for  the  year  1875  by  the  defendant  to  super- 
intend the  latter's  lumber  and  wood  yard.  In  June  of  that  year, 
defendant  diseliarged  plaintiff  and  paid  him  to  the  time  of  such 
discharge.  Plaintiff  claimed  to  recover  the  agreed  wages  for  the 
remainder  of  the  year,  or  from  the  time  of  the  discharge  until  he 
obtained  other  employment. 

At  the  trial  the  evidence  tended  to  show  that  plaintiff,  while  so 
in  defendant's  employ,  carried  on  the  wood  business  on  his  own 
account.  The  jury  were  instructed,  among  other  things,  that  "the 
plaintiff  had  a  right  to  be  interested  in  any  kind  of  business,  but 
his  interest  in  such  business  must  not  in  any  way  interfere  with  his 
time  and  attention  to  the  business  of  his  employer."  The  plaintiff 
recovered  in  the  action,  and  defendant  appealed. 
19 


Cases  on  Agency.  [Book  I 

D,  Bdbcoch  and  David  Taylor,  for  appellant. 
Shepard  &  Shepard,  for  respondent. 

Lyon,  J.  It  is  well  settled  that  if  a  servant,  withont  the  con- 
Bent  of  his  master,  engage  in  any  employment  or  business  for  him- 
self or  another,  which  may  tend  to  injure  his  master's  trade  or 
business,  he  may  lawfully  be  discharged  before  the  expiration  of 
the  agreed  term  of  service.  This  is  so  because  it  is  the  duty  of  the 
servant,  not  only  to  give  his  time  and  attention  to  his  master's 
business,  but,  by  all  lawful  means  at  his  command,  to  protect  and 
advance  his  master's  interests.  But,  when  the  servant  engages  in 
a  business  which  brings  him  in  direct  competition  with  his  master, 
the  tendency  is  to  injure  or  endanger,  not  to  protect  and  promote, 
the  interests  of  the  latter.  It  was  said  by  Lord  Ellenborough, 
in  a  discussion  on  this  subject  in  Thompson  vs.  HavelocJc,  1  Camp. 
527,  that  *'  No  man  shall  be  allowed  to  have  an  interest  against  his 
duty."  Manifestly,  when  a  servant  becomes  engaged  in  a  business 
which  necessarily  renders  him  a  competitor  and  rival  of  his  master, 
no  matter  how  much  or  how  little  time  and  attention  he  devotes 
to  it,  he  has  an  interest  against  his  duty.  It  would  be  monstrous 
to  hold  that  the  master  is  bound  to  retain  the  servant  in  his 
employment  after  he  has  thus  voluntarily  put  himself  in  an  atti- 
tude hostile  to  his  master's  interests. 

The  fact  may  be,  in  certain  cases,  that  notwithstanding  the  ser- 
vant has  engaged  in  a  rival  business,  still  he  has  given  his  whole 
time  and  attention  to  the  business  of  his  master.  An  attempt  was 
made  to  show  that  this  is  such  a  case.  But  the  existence  of  that 
fact  will  not  take  a  case  out  of  the  rule  above  stated,  for  the  reason 
that  the  servant  would  yet  have  an  interest  against  his  duty. 

The  cases  which  sustain  or  tend  to  sustain  the  doctrine  here  laid 
down  are  very  numerous.  For  convenience  we  cite  a  few  of  them: 
Singer  vs.  McCormich,  4  W.  &  S.  2G5;  Jaffray  vs.  King,  34  Md. 
217;  Adams  Exjness  Co.  vs.  Trego,  35  Id.  47;  Lacy  vs.  Osbaldiston, 
8  C.  &  P.  80;  Read  vs.  Dunsmore,  9  Id.  588;  hHchol  vs.  Martyn, 
2  Esp.  732;  Gardner  vs.  McCutclieon,  4  Beav.  534;  Ridgeway  vs. 
Market  Co.,  3  Ad.  &  E.  171;  Amor  vs.  Fearon,  9  Id.  548;  llorlon 
vs.  McMurtry,  5  Uurl.  &  N.  667.  See,  also.  Wood  on  Master  and 
Servant,  §  116,  and  cases  cited  in  notes. 

If  the  plainLiU  became  engaged  in  a  business  which  necessarily 
made  him  a  competitor  of  his  employer  in  the  purchase  of  wood  at 


Chap.  VII]  DiEKiNGEE  vs.  Meyeb.  29] 

New  Cassel,  or  in  selling  the  same  at  Fond  du  Lac,  such  bnsiness  had 
a  direct  tendency  to  raise  the  price  at  the  former  p!ace  and  depress 
it  at  the  latter,  as  well  as  to  decrease  the  defendant's  business;  and 
hence  its  tendency  was  hostile  to  the  defendant's  interests,  and  it 
was  equally  hostile,  even  though  the  plaintiff  conducted  it  entirely 
by  agents,  and  gave  his  whole  time  and  attention  to  the  business 
of  the  defendant. 

The  learned  circuit  court  charged  the  Jury,  in  effect,  that  it  was 
no  valid  cause  for  discharging  the  plaintiff  before  the  expiration 
of  the  term  for  which  he  was  employed,  that  he  engaged, 
in  such  rival  and  hostile  business,  if  he  gave  his  whole 
time  and  attention  to  the  business  of  the  defendant.  Within  the 
rules  of  law  above  stated,  this  instruction  was  erroneous,  and  the 
verdict  may  have  been  predicated  upon  the  instruction  and  controlled 
by  it     Hence  the  error  is  material,  and  fatal  to  the  judgment. 

As  to  whether  the  contract  of  hiring  was  or  was  not  for  a  specified 
term  of  service,  we  express  no  opinion  upon  the  evidence;  but  we 
have  decided  the  case  on  the  theory  that  there  was  a  hiring  for  a 
year,  that  being  the  most  favorable  to  the  plaintiff. 

By  the  court — Judgment  reversed,  and  cause  remanded  for  a 
new  trial. 

Note.— See  Orr  vs.  Ward,  78  111.  818.  On  right  to  terminate  for  agent* s 
misconduct,  see  Callo  vs.  Brouncker,  4  C.  &  P.  518;  Atkin  vs.  Acton,  Id. 
208;  Bixby  vs.  Parsons,  49  Conn.  483,  44  Am.  Rep.  246;  Phillips  vs.  Foxall, 
L.  R.  7  Q.  B.  666;  Newman  vs.  Reagan,  65  Ga.  512;  Pearce  vs.  Foster,  7  Q. 
B.  Div.  536,  88  Eng.  Rep.  (Moak)  499;  Shaver  vs.  Ingham,  58  Mich.  649,  55 
Am.  Rep.  712;  Diayton  va.  Beid,  5  Daly.  (N.  Y.)  442;  Fhysioc  va.  Shea,  76 
Ga.  466. 


(82  Alabama,  452,  60  Am.  Rep.  748.) 

BASS  FURNACE  CO.  vs.  GLASSCOCK. 

('Supreme  Court  of  Alabama,  December,  18SG.) 

This  was  an  action  brought  by  Glasscock  against  the  furnace 
company  to  recover  damages  for  an  alleged  breach  of  a  contract  of 
employment.  Verdict  for  plaintiff  and  defendant  appeals.  The 
opinion  states  the  facts. 

Walden  <&  Sons,  for  appellant. 


292  Oases  on  Agency.  [Book  I 

Matthews  S  Daniel,  contra. 

SoMEEViLLB,  J.  1.  The  first  portion  of  the  charge  given  by 
the  court,  to  which  exception  is  taken,  raises  the  inquiry,  under 
what  circumstances  an  employer  is  justified  in  discharging  an 
employe  from  his  service  on  the  ground  of  drunkenness.  The 
plaintifE  was  employed  by  the  defendant  company,  to  reduce  to 
charcoal,  or  as  expressed  by  the  witness,  to  •*  coal "  the  wood  on  a 
tract  of  land  owned  by  the  company,  for  which  he  was  to  be  paid 
wages  at  the  rate  of  fifty  dollars  per  month.  The  evidence  tends 
to  show  that  the  plaintiff,  a  short  while  before  his  discharge,  was 
drunk  on  the  premises  of  the  defendant,  where  an  iron  furnace  was 
in  process  of  operation,  about  four  miles  away  from  "  the  coaling," 
as  it  is  called,  and,  while  so  intoxicated,  he  there  "raised  a  dis- 
turbance and  had  a  fight  with  a  man."  At  another  time,  he  was 
seen  *'  drunk,  in  a  wagon  with  some  negro  women,  going  towards 
the  coaling."  This  is  all  that  is  shown  by  the  evidence  bearing  on 
this  point,  no  details  being  given.  The  court  charged  the  jury, 
that  "  the  fact  that  the  plaintiff  was  drunk  once,  or  a  number  of 
times,  at  the  furnace  or  elsewhere,  during  his  employment  under 
the  contract,  is  no  evidence  against  the  plaintiff's  right  of  recovery, 
unless  the  drunkenness  incapacitated  and  caused  the  plaintiff  to 
fail  in  his  part  of  the  contract."  Is  this  a  correct  statement  of 
the  law  on  this  subject? 

To  justify  an  employer  in  discharging  a  servant,  or  employ^,  the 
rule,  no  doubt,  is  that  the  servant  must  have  been  guilty  of  conduct 
which  can  be  construed  to  be  a  breach  of  some  express  or  implied 
provision  in  the  contract  of  service.  It  seems  to  be  settled,  that 
it  is  an  implied  part  of  every  contract  of  service,  that  the  employ^ 
will  abstain  from  habitual  drunkenness,  or  repeated  acts  of  intoxi- 
cation, during  the  period  of  his  employment.  If  he  be  guilty  of 
this  indulgence,  his  conduct  will  justify  his  dismissal.  2  Addison 
on  Contracts  (Morgan's  Ed.)  sec.  890;  Wise  vs.  Wilson,  1  Car.  & 
K.  C62;  2  Parsons  on  Contracts,  36,  note  (f);  Go7isoHs  vs.  Gear- 
heart,  31  Mo.  585;  Huntington  vs.  Cloflin,  10  Bosw.  (N.  Y.)  262. 
There  may  be  circumstances,  however,  under  which  a  single  act  of 
drunkenness  would  warrant  a  servant's  discharge;  as  for  example, 
in  the  case  of  a  minister  of  the  gospel,  where  the  act  might  bring 
personal  reproach,  and  tends  to  degrade  the  moral  standard  of 
religion;  or  of  a  family  physician,  where  it  might  result  in  negli- 
gence, or  malpractice  in  pharmacy  or  surgery.     Wood  on  Master 


Chap.  VII  ]         Furnace  Co.  vs.  Glasscock.  293 

and  Servant,  sec.  Ill,  p.  213.  The  same  act  when  committed  by 
a  day  laborer,  in  privacy,  and  when  off  duty,  or  on  some  rare 
occasion  when  great  temptation  was  presented,  might  not  be  a 
sufficient  excuse  for  his  discharge.  The  rule  is  stated  by  a  recent 
author  to  be,  that  "intoxication,  while  in  service,  is  generally  a 
good  excuse  for  discharging  a  servant,  particularly  when  it  is 
habitual,  and  interferes  with  the  discharge  of  his  duties,  or  will  be 
likely  to.  But  it  is  held,  that  as  to  whether  it  is  to  be  regarded  as 
a  proper  excuse,  depends  upon  the  occasion.'*  Wood  on  Master 
and  Servant,  sec.  Ill,  p.  213. 

We  do  not  doubt  that  public  drunkenness  of  any  employ^,  while 
in  the  service  of  his  employer,  and  manifesting  itself  in  boisterous 
and  disorderly  conduct  either  towards  the  employer  or  third  per- 
sons, is  such  misconduct  as  to  constitute  a  violation  of  the  stipula- 
tion, implied  in  every  contract  of  service,  that  the  employe  will 
conduct  himself  with  such  decency  and  politeness  of  deportment 
as  not  to  work  injury  to  the  business  of  the  employer.  This  he  can 
do  by  a  single  act  of  drunkenness,  which  may  tend  to  offend  the 
reasonable  prejudices  or  tastes  of  the  public,  or  impair  their  confi- 
dence, or  render  him  disagreeable  in  social  or  business  intercourse. 
The  drunkenness  of  employes  may  well  deter  the  patrons  of  any 
business  establishment  from  continuing  their  business  intercourse 
with  it,  especially  when  social  contact  is  frequently  necessary  to  its 
consummation.  It  may  prove,  also,  equally  offensive  to  the  master 
or  employer,  who  may  justly  regard  sobriety  as  an  indispensable 
element  of  efficient  service.  The  charge  of  the  court  laid  down 
the  rule,  that  no  drunkenness  justified  the  plaintiff's  discharge, 
unless  it  incapacitated  him,  and  caused  him  to  fail  in  the  perform- 
ance of  his  part  of  the  contract.  This,  under  the  principles  above 
declared,  was  erroneous,  and  must  work  a  reversal  of  the  cause.  *  ♦ 

Reversed  and  remanded. 


294  Cases  on  Agency.  [Book  I 

(66  New  Yoke,  301.) 

CLAFLIN  vs.  LENHEIM. 

(New  York  Court  of  Appeals,  June,  1876.) 

Action  to  recover  for  merchandise  alleged  to  have  been  Bold  by 

plaintiff  to  defendant.      The  opinion  states  the  facta.     Judgment 
for  defendant  and  plaintiffs  appealed. 

A.  J.   Vanderpoel,  for  appellants, 
A.  G.  Rice,  for  the  respondents. 

Eapallo,  J.  The  plaintiffs  seek  to  recover  in  this  action  the 
price  of  certain  merchandise  which  they  allege  that  they  sold  and 
delivered  to  the  defendant,  through  his  brother  H.  S.  Lenheim,  as 
his  agent. 

To  establish  the  agency,  they  proved  that  this  brother  of  the 
defendant  had,  for  several  years  prior  to  July,  1867,  conducted  the 
business  of  a  store  at  Meadville,  Pennsylvania,  in  the  name  of  the 
defendant,  and  had  been  in  the  habit  of  purchasing  goods  for  that 
store  from  the  plaintiffs.  These  purchases  were  all  made  in  the 
name  and  on  the  credit  of  the  defendant,  and  the  bills  thereof  were 
rendered  to  and  paid  by  him. 

The  defendant  concedes,  in  his  testimony,  that  previous  to  a  fire 
which  took  place  in  July,  1867,  in  the  store  at  Meadville,  his 
brother  was  authorized  by  him  to  make  purchases  and  carry  on 
that  store  in  his,  the  defendant's  name,  but  contends  that  after 
the  fire  he  terminated  such  authority.  The  purchases  for  which 
this  action  was  brought  were  made  by  the  brother,  for  the  Meadville 
store,  in  November  and  December,  1869,  in  the  name  of  the  defend- 
ant. The  plaintiffs  claim  that  they  had  no  notice  of  the  revocation 
of  the  agency,  and  sold  on  the  credit  of  the  defendant. 

The  last  bill  paid  by  the  defendant  for  goods  sold  for  the  Meadville 
store,  was  for  upwards  of  $8,000,  and  was  paid  in  August,  1867. 
It  was  for  goods  sold  before  the  fire.  There  was  a  diflSculty 
between  the  plaintiffs  and  the  defendant  about  this  bill.  An 
action  was  brought  upon  it  and  an  attachment  issued  against  the 
property  of  the  defendant,  and  he  was  required  to  pay  the  costs  of 
these  proceedings,  which  he  did  in  August,  1867.  The  defendant 
had  for  several  years  previously  carried  on  another  store  at  Great 
Bend,  Pennsylvania,  and  had  been  in  the  habit  of  purchasing  goods 


Chap.  VII  ]  Olaflin  v.  Lenheim.  295 

from  the  plaintiffs  for  that  store;  but  after  this  diflQculty  he  sns- 
pended  all  his  dealings  with  the  plaintiffs  until  the  month  of 
October,  18G9,  when  he  resumed  his  business  relations  with  them 
by  the  purchase  of  goods,  personally,  for  the  store  at  Great  Bend. 
In  the  following  months  of  November  and  December,  18G9,  the 
brother  made  the  purchases  now  in  controversy,  in  the  name  of  the 
iefendant,  for  the  Meadville  store. 

The  defendant  gave  evidence  on  the  trial  tending  to  show  actual 
notice  to  the  plaintiffs  of  the  revocation  of  the  agency,  after  the 
fire  of  July,  1867.  It  was  conceded  that  the  plaintiffs  had  notice 
of  the  burning  of  the  store  at  Meadville,  but  the  evidence  of  the 
notice  of  the  revocation  of  the  agency  was  controverted. 

The  court  submitted  to  the  jury  the  question  whether  the 
plaintiffs  had  notice  of  the  revocation,  but  charged  that  if  the  jury 
came  to  the  conclusion  "that  the  circumstances  of  the  case  were 
such,  independently  of  the  question  of  notice,  that  in  fair  dealing 
between  man  and  man,  plaintiffs  should  have  inquired  by  telegraph 
or  by  letter  of  the  defendant  at  Great  Bend  whether  he  continued 
the  Meadville  store,  and  whether  the  brother  continued  to  have 
authority  to  buy  goods  in  his  name,  that  will  end  the  recovery  in 
this  case;''  and,  further,  that  if  the  jury  came  to  the  conclusion 
**  that  no  notice  in  fact  was  given  and  that  the  circumstances  were 
Buch  as  to  put  the  plaintiffs  fairly  upon  inquiry  as  to  whether  that 
business  was  continued  by  the  defendant  and  the  brother  had 
authority  to  continue  it  by  making  these  purchases,  that  ends  the 
responsibility  on  the  part  of  the  defendant.*'  Exceptions  were 
duly  taken  to  the  portions  of  the  charge  above  quoted. 

It  is  a  familiar  principle  of  law  that  when  one  has  constituted 
and  accredited  another  his  agent  to  carry  on  his  business,  the 
authority  of  the  agent  to  bind  his  principal  continues,  even  after 
an  actual  revocation,  until  notice  of  the  revocation  is  given;  and, 
as  to  persons  who  have  been  accustomed  to  deal  with  such  agent, 
until  notice  of  the  revocation  is  brought  home  to  them.  The  case 
of  such  an  agency  is  analogous  to  that  of  a  partnership,  and  the  notice 
of  revocation  of  the  agency  is  governed  by  the  same  rules  as  notice 
of  the  dissolution  of  a  partnership.  As  to  persons  who  have  been 
previously  in  the  habit  of  dealing  with  the  firm,  it  is  requisite  that 
actual  notice  should  be  brought  home  to  the  creditor,  or  at  least, 
that  the  credit  should  have  been  given  under  circumstances  from 
which  notice  can  be  inferred.  Where  the  circumstances  are  con- 
troverted, or  where  notice  is  sought  to  be  inferred  as  a  fact,  from 


296  Cases  on  Agency.  [Book  1 

circumstances,  the  question  is  for  the  jury;  they  must  determine, 
as  a  question  of  fact,  whether  the  party  claiming  against  the  part- 
nership or  the  principal,  did  have  notice  of  the  dissolution  or  revo- 
cation; and  there  being  some  evidence  of  the  fact  of  notice,  the 
court,  in  the  present  case,  properly  submitted  to  the  jury  this 
question  of  fact. 

But  the  court  submitted  to  the  jury  the  further  question  whether, 
independently  of  the  question  of  notice  in  fact,  the  circumstances 
were  such  as  to  put  the  plaintiffs  on  inquiry  as  to  whether  the 
authority  of  the  agent  continued,  and  charged  them  that  if  they 
were,  the  plaintiffs  were  charged  with  notice  of  the  facts  which  the 
inquiry  would  have  disclosed.  In  other  words,  the  question  was 
submitted  to  the  jury  whether,  although  the  plaintiffs  had  no 
notice  in  fact,  they  had  constructive  notice  of  the  revocation  of  the 
agency. 

Assuming  that  the  doctrine  of  constructive  notice  is  applicable 
to  cases  of  this  description,  what  circumstances  amount  to  con- 
structive notice  is  a  question  of  law.  Where  the  facts  are  in  dis- 
pute, a  mixed  question  of  law  and  fact  is  presented,  and  then  of 
course  the  question  is  to  be  determined  by  the  jury,  under  instruc- 
tions by  the  court,  as  to  the  effect  of  the  circumstances  which  they 
may  find  to  have  existed.  But  the  question  whether  circum- 
stances which  are  undisputed,  or  are  found  by  the  jury,  are  suf- 
ficient to  put  a  party  on  inquiry  and  thus  charge  him  with  con- 
structive notice,  is  not  for  the  jury,  but  for  the  court. 

In  this  case,  throwing  out  of  view  the  evidence  bearing  upon  the 
question  of  actual  notice,  there  was  no  controversy  about  the  facts. 
These  were,  that  the  store  at  Meadville  was  burnt  in  July,  1867, 
and  the  plaintiffs  knew  of  the  fire;  that  the  plaintiffs  brought  an 
action  and  issued  an  attachment  against  the  defendant  for  the  bill 
then  due  for  goods  furnished  to  the  store  at  Meadville;  that  this 
claim  and  the  cost  of  the  proceedings  were  paid  by  the  defendant 
in  August,  1867,  and  the  defendant  thereafter  suspended  all  deal- 
ings with  the  plaintiffs  until  October,  1869,  when  he  resumed  them, 
and  that  in  November,  1869,  the  brother  resumed  his  purchases 
for  the  Meadville  store,  from  the  plaintiffs,  on  credit,  in  the  name 
of  the  defendant,  and  the  plaintiffs  gave  him  credit  as  the  agent 
for  the  defendant.  Whether  these  circumstances  were  sulTiciGnt  to 
put  the  plaintiffs  on  inquiry,  or,  in  other  words,  whether  they 
amounted  to  constructive  notice  of  the  fact,  which  an  inquiry 
would  have  disclosed,  viz.,  the  revocation  of  the  agency,  was  a 


Chap.  VII  ]  Claflin  vs.  Lenheim.  297 

question  of  law,  to  be  determined  by  the  conrt,  and  it  was  error  to 
submit  it  to  the  jury.  Am,  Line7i  Thread  Co.  vs.  Wortendylce,  24 
N.  Y.  550;  Howe  vs.  Thayer,  17  Pick.  (Mass.)  91. 

Constructive  notice  is  a  legal  inference  from  established  facts, 
and  when  the  facts  are  not  controverted,  the  question  is  one  for 
the  courts.  Whether,  under  a  conceded  state  of  facts,  the  law 
will  impute  notice,  is  not  a  question  for  the  jury.  Birdsall  vs. 
Russell,  29  N.  Y.  220,  249. 

This  error,  however,  would  not  be  ground  for  reversing  the  judg- 
ment if  it  appeared  that  the  court  would  have  been  justified  in 
holding,  as  matter  of  law,  that  the  circumstances  were  sufficient  to 
put  the  plaintiffs  on  inquiry,  and  we  must,  therefore,  examine  that 
question. 

The  mere  fact  that  the  store  at  Meadville  was  burnt  did  not  indi- 
cate that  the  defendant  intended  to  discontinue  business  there;  and 
if  business  had  been  promptly  resumed  and  purchases  for  that 
store  renewed  by  the  defendant's  brother,  there  could  have  been  no 
reason,  in  the  absence  of  any  notice  from  the  defendant,  to  sup- 
pose that  the  agency  had  been  discontinued.  The  principal  feature 
in  the  case  is  the  delay  of  two  years  and  upwards  between  the  fire 
and  the  resumption  of  purchases,  by  the  defendant's  brother,  for 
the  Meadville  store.  But,  under  the  circumstances,  this  delay 
might  well  have  been  attributed  by  the  plaintiffs  to  the  difiaculty 
between  them  and  the  defendant,  in  July  and  August,  1867,  which 
resulted  in  the  defendant  suspending  all  dealings  with  the  plaint- 
iffs, notwithstanding  that  he  continued  his  business  at  Great  Bend. 
And  when  the  defendant,  in  1869,  resumed  his  dealings  with  the 
plaintiffs,  without  gi\  ing  them  notice  of  any  change  in  his  business 
arrangements  with  his  brother,  at  Meadville,  the  plaintiffs  were 
warranted  in  believing  that  the  suspension  of  the  dealings  of  the 
brother  were  attributable  to  the  same  cause  which  had  deterred  the 
defendant  himself  from  making  purchases;  and  when,  immediately 
after  the  defendant  himself  resumed  dealings,  the  brother  applied 
to  make  purchases  as  before,  for  the  Meadville  store,  the  plaintiffs 
would  not,  naturally,  attribute  the  suspension  of  dealings  for  that 
store,  in  the  meantime,  to  a  revocation  of  the  agency,  nor  suspect 
that  the  brother  was  committing  a  fraud.  ^Ye  must,  in  consider- 
ing the  portion  of  the  charge  .excepted  to,  assume,  as  we  have 
assumed,  that  no  notice  was  given  by  the  defendant  to  the  plaintiffs 
that  he  had  discontinued  his  business  at  Meadville  or  revoked  the 
authority  of  his  brother,  and  that  the  plaintiffs  knew  nothing  of  it. 


298  Oases  on  Agency.  [Book  I 

for  the  charge  expressly  suhmits  the  question  of  constructive  notice, 
independently  of  the  question  of  notice  in  fact,  and  expressly  statea 
that  the  jury  are  to  pass  upon  it  in  case  they  find  that  there  waa 
no  notice  in  fact. 

We  think  that  the  circumstances  existing  at  the  time  of  the 
sale  of  the  goods  in  question  were  not  sufficient  to  constitute  con- 
Btructive  notice  of  the  revocation  of  the  agency,  and  that  the  case 
should  have  been  submitted  to  the  jury  only  upon  the  question  of 
notice  in  fact.  In  this  there  is  no  hardship  upon  the  defendant; 
it  was  his  duty,  after  he  had  accredited  his  brother  for  a  series  of 
years  as  authorized  to  deal  in  his  name  and  on  his  responsibility, 
when  he  terminated  that  authority,  to  notify  all  parties  who  had 
been  in  the  habit  of  dealing  with  his  agent,  as  the  plaintiff  had 
been  to  his  knowledge.  This  was  an  act  easily  performed  and 
would  have  been  a  perfect  protection  to  him  and  prevented  the 
plaintifTs  from  being  deceived.  Justice -to  parties  dealing  with 
agents  requires  that  the  rule  requiring  notice  in  such  cases  should 
not  be  departed  from  on  slight  grounds,  or  dubious  or  equivocal 
circumstances  substituted  in  place  of  notice.  If  notice  was  not  in 
fact  given,  and  loss  happens  to  the  defendant,  it  is  attributable  to 
his  neglect  of  a  most  usual  and  necessary  precaution. 

The  jury  may  have  been  satisfied  that  notice  was  given,  but 

under  the  charge  they  may  have  rendered  their  verdict  solely  on 

the  ground  of  constructive  notice;  the  judgment  must,  therefore, 

be  reversed  and  a  new  trial  ordered,  with  costs  to  abide  the  event. 

All  concur. 

Judgment  reversed. 

Note. — As  to  the  necessity  of  giving  notice  of  the  termination  of  a  gen* 
era!  agency  to  third  persons:  Batch  vs.  Coddington,  95  U.  S.  48;  Bice  V8. 
Barnard,  127  Mass.  241;  Wright  vs.  Herrick,  128  Mass.  240;  Tier  vs. 
Lampson,  85  Vt.  179,  82  Am.  Dec.  634;  Baudouine  vs.  Grivies,  64  Iowa, 
870;  Meyer  ««.  Hehner,  96  111.  400;  Howe  Machine  Co.  vs.  Simler,  59  Ind. 
B07. 

In  the  case  of  a  special  agency,  see  Watts  vs.  Kavanaugh,  35  Vt.  84; 
etrachan  vs.  MilxIow,  24  Wis.  21;  Fellows  vs.  Steamboat  Co.,  88  Conn 
197. 


Chap.  VII  ]         Insueancb  Co.  vs.  McCaih.  299 

(96  United  States,  84.) 
INSURANCE  COMPANY  vs.  McCAIN. 
C  United  States  Supreme  Court,  October,  1877. J 

This  was  an  action  on  a  policy  of  insurance  issued  by  the 
Southern  Life  Insurance  Company,  a  corporation  created  by  the 
laws  of  Tennessee,  upon  the  life  of  Adam  S.  McCain,  commencing 
on  the  10th  day  of  December,  1868.  The  insurance  was  for  the 
sum  of  85,000,  and  was  effected  by  the  wife  of  the  insured,  for  the 
sole  use  of  herself  and  children.  The  policy  was  received  from  an 
agent  of  the  company,  one  B.  F.  Smith,  who  was  appointed  to 
Bolicit  applications  for  policies  and  collect  premiums  for  a  district 
of  country  embracing  a  part  of  Mississippi  and  also  a  part  of 
Alabama,  in  which  the  insured  resided.  To  him  the  first 
premium  was  paid.  The  second  premium,  due  on  the  10th 
of  December,  1869,  was  paid  on  the  5th  of  that  month,  to 
his  sub-agent,  who,  before  the  10th,  handed  him  the  amount, 
and  it  was  credited  in  his  account  rendered  to  the  company 
in  April  following.  The  account  disclosed  the  fact  that  the 
amount  was  received  upon  the  policy  in  question.  After  its  receipt 
no  communication  was  made  by  the  company  to  the  assured  that 
Smith  was  not  its  agent  at  the  time  of  the  payment,  nor  was  any 
objection  made  to  the  suflSciency  of  the  payment.  The  insured 
died  in  June,  1870,  and  this  action  was  commenced  on  January, 
1873,  in  a  state  court,  and,  on  application  of  defendant,  was  trans- 
ferred to  the  Circuit  Court  of  the  United  States.  The  proper  pre- 
Ihninaryproof  of  the  death  of  the  insured  was  made,  and  the  case 
turned  upon  the  sufficiency  of  the  second  payment. 

The  company,  in  its  defense,  denied  the  authority  of  Smith  to 
receive  the  premium,  contending  that  his  agency  had  previously 
ceased,  under  the  rules  and  regulations  of  the  company,  by  hia 
accepting  the  agency  of  another  insurance  company;  and,  further, 
that  its  agents  were  only  empowered  to  collect  renewal  premiums 
upon  special  receipts,  sent  out  from  the  office  of  the  company  for 
each  case,  signed  by  its  president  and  secretary,  and  countersigned 
by  the  agent.  The  evidence  established  the  existence  of  such  regu- 
lations, and  tended  to  show  that  the  agent  had  resigned  his  agency 
previous  to  the  Ist  of  December.  It  appeared  also  that  no  renewal 
receipt,  signed  as  required,  was  given  in  the  case.    But  the  court  held 


300  Oases  on  Agency.  [Book  I 

and  in  substance  instructed  the  jury,  that  if  Smith  was  the  general 
agent  of  the  company,  and  as  such  had  authority  to  bind  the  com- 
pany by  a  receipt  of  the  renewal  premium  before  the  10th  day  of 
December,  1869,  a  payment  to  him  was  BuflScient,  unless  previ- 
ously to  such  payment  the  assured  had  notice  that  the  agent's 
authority  had  been  revoked;  and  that  though,  as  a  general  rule,  a 
person  dealing  with  an  agent  must  inquire  into  his  authority,  yet 
that  the  powers  of  an  agent  were  prima  facie  co-extensive  with  the 
business  intrusted  to  his  care,  and  would  not  be  narrowed  by  limi- 
tations from  his  principal  not  communicated  to  the  person  with 
whom  he  dealt;  and  that,  unless  the  assured  was  informed  that  a 
payment  would  not  be  good  in  the  absence  of  a  particular  form  of 
receipt,  a  payment  by  him  within  the  time  prescribed  by  the  policy 
was  sufficient,  though  a  different  form  of  receipt  was  used. 

The  court  also  held,  and  instructed  the  jury,  in  substance,  that 
if  the  company  received,  in  April,  1870,  a  statement  of  the  agent 
Smith,  showing  the  receipt  by  him  of  the  renewal  premium  pay- 
able on  the  10th  of  December,  and  the  company  did  not  notify  the 
assured,  who  lived  more  than  a  month  afterwards,  that  it  repudi- 
ated the  transaction,  it  would  be  a  fraud  on  its  part  to  repudiate 
the  payment  after  his  death,  and  that  the  payment  would  bind  the 
company.  The  jury  found  a  verdict  for  the  plaintiff,  upon  which 
judgment  was  entered;  and  the  insurance  company  brought  the 
case  here  on  writ  of  error. 

Mr.  John  D.  McPherson,  for  the  plaintiff  in  error, 

Mr.  P.  Phillips,  contra. 

Mr.  Justice  Field,  after  stating  the  facts  of  the  case,  deliv- 
ered the  opinion  of  the  court. 

The  law  embraced  by  the  instructions  to  the  jury  is  clearly  and 
correctly  stated.  No  company  can  be  allowed  to  hold  out  another 
as  its  agent,  and  then  disavow  responsibility  for  his  acts.  After  it 
has  appointed  an  agent  in  a  particular  business,  parties  dealing 
with  him  in  that  business  have  a  right  to  rely  upon  the  continu- 
ance of  his  authority,  until  in  some  way  informed  of  its  revocation. 
The  authorities  to  this  effect  are  numerous,  and  will  be  found  cited 
in  the  treatises  of  Paley  and  Story  on  agency. 

The  law  is  equally  plain,  that  special  instructions  limiting  the 
authority  of  a  general  agent,  whose  powers  would  otherwise  be  coex- 
tensive with  the  business  intrusted  to  him,  must  be  communicated 
to  the  party  with  whom  he  deals,  or  the  principal  will  be  bound  to 


I 


Chap.  VIT]  Insueanob  Co.  vs.  McOaut.  301 

the  same  extent  as  thongh  such  Bpecial  mstrnctions  were  not 
given.  Were  the  law  otherwise,  the  door  ■would  be  open  to  the 
commission  of  gross  frauds.  Good  faith  requires  that  the  princi- 
pal should  be  held  by  the  acts  of  one  whom  he  has  publicly  clothed 
with  apparent  authority  to  bind  him.  Story  on  Agency,  sects. 
126,  127,  and  cases  there  cited. 

The  law  on  the  silence  of  the  company,  after  receiving  the  state- 
ment of  the  agent  that  the  premium  had  been  paid,  is  also  free 
from  doubt.  Silence  then  was  equivalent  to  an  adoption  of  the 
act  of  the  agent,  and  closed  the  mouth  of  the  company  ever  after- 
wards. It  does  not  appear  that  the  company  ever  objected  to  the 
payment  of  the  premium  to  him  until  after  the  death  of  the  insured. 
It  was  then  too  late.  As  pertinently  said  by  counsel,  the  com- 
pany cannot  be  permitted  to  occupy  the  vantage  ground  of  retain- 
ing the  premium  if  the  party  continued  in  life,  and  repudiating  it 

if  he  died. 

Judgment  aflBrmed. 


(83  New  York,  378,  38  Am.  Eep.  441.) 

SIBBALD  vs.   BETHLEHEM  IRON   COMPANT. 

(New  YorJc  Court  of  Appeals,  December,  18S0.) 

Action  for  commissions.      The  opinion  states  the  facta.      The 
plaintifE  had  judgment  below. 

Albert  SticTcney,  for  appellant. 
Thomas  Hy.  Edsdll,  for  respondent. 

Finch,  J.  The  evidence  satisfactorily  shows  that  the  defend- 
ant employed  the  plaintiff  to  sell  the  steel  rails  of  the  former's 
manufacture  to  the  Grand  Trunk  Eailroad  Company.  The  exist- 
ence of  such  a  contract  was  strenuously  denied  on  the  part  of  th» 
appellant,  but  the  proofs  establish  it  and  leave  it  without  substan- 
tial contradiction.  The  plaintiff  swears  that  in  December,  1873, 
he  met  and  was  introduced  to  Mr.  Hunt,  the  president  of  the 
defendant  coi-poration,  and  was  requested  by  him  to  use  the  plaint- 
iff's exertions  and  interest  in  selling  steel  rails  of  the  Bethlehem 
Iron  Company's  make,  and  particularly  to  the  Grand  Trunk  Rail- 
way of  Canada,  and  that  the  plaintiff  agreed  to  do  so  if  he  could 
Hunt  was  afterward  examined,  and  does  not  contradict  this  state- 


302 


Oases  on  Agency.  [Book  I 


ment.  Indeed,  he  almost  admits  it.  He  says:  "I  presume  I  was 
introduced  to  Mr.  Sibbald  in  December,  1873.  I  have  no  recollecj- 
tion  of  it.  After  my  introduction  to  him  I  may  have  called  upon 
him  in  his  office  in  New  York.  He  says  I  did,  and  I  accept  his 
statement  up  to  his  sale  of  Uth  of  April."  Mr.  Evans,  in  whose 
presence  the  conversation  detailed  by  plaintifE  took  place,  was  also 
examined  as  a  witness  by  the  defendant.  He  admits  the  meeting 
on  that  occasion;  that  he  introduced  Sibbald  to  Hunt  as  a  man 
engaged  in  selling  steel  rails;  that  several  railways  were  named  as 
purchasers  from  plaintiff,  "the  Grand  Trunk  doubtless  among 
them;"  and  then  he  adds,  "I  do  not  remember  that  anytliing 
definite  was  said  as  to  his  selling  any  rails  for  the  Bethlehem  Com- 
pany, but  there  may  have  been.'* 

Upon  this  state  of  facts  it  is  very  evident  that  there  was  a  gen- 
eral employment  of  the  plaintiff  by  the  defendant  to  sell  its  rails 
80  far  as  he  was  able,  and  especially  to  the  Grand  Trunk  Railway, 
with  whose  purchasing  officers  he  was  supposed  to  be  in  communica- 
tion and  to  have  influence.  It  follows  that  the  first  alleged  error 
committed  upon  the  trial,  that  the  court  refused  a  request  to  direct  a 
verdict  for  the  defendant  on  the  ground  that  the  plaintiff  had  not 
proved  as  to  the  transaction  in  suit  any  employment  by  the  defend- 
ant, cannot  be  bo  regarded.  The  general  employment  was  suf- 
ficiently definite  and  broad  to  have  related  and  applied  to  the  sale 
finally  made,  if  indeed  that  resulted  from  plaintiff's  influence  and 
exertion.  ISIor  do  we  see  any  fault  in  the  charge  of  the  court  in 
this  connection,  that  it  was  immaterial  whether  the  broker  was 
originally  employed,  or  whether,  after  he  had  brought  the  thing 
about,  the  principal  availed  himself  knowingly  of  the  fruits  of  the 
action  of  the  broker.  This  is  only  saying  that  the  contract  of 
employment  may  be  established  either  by  proof  of  an  express  and 
original  agreement  that  the  services  should  be  rendered,  or  by 
facts  showing,  in  absence  of  such  express  agreement,  a  conscious 
appropriation  of  the  labors  of  the  broker.  Indeed,  the  learned 
counsel  for  the  defendant  very  fairly  and  justly  concedes  that  the 
contract  may  be  established  in  some  cases  "  by  a  mere  acceptance 
of  the  labors  of  a  broker." 

It  follows  also  that  there  was  no  error  in  the  further  charge  of 
the  court,  that  the  only  remaining  question  was  whether  plaintiff 
was  the  producing  cause  of  the  sale.  Having  been  employed  to  make 
it,  the  only  remaining  inquiry  was  of  necessity  whether  he  did 
make  it  either  directly,  or  as  its  efficient  and  producing  cause. 


Ohap.  VII]  SiBBALD  V8.  Ikoit  Co.  303 

That  inquiry  brings  np  for  our  consideration  what  the  plaintifE  in 
fact  did,  and  what  inferences  are  to  be  justly  drawn  from  the 
attendant  circumstances.  The  question,  simple  up  to  this  point, 
grows  rapidly  difficult  and  complicated,  partly  by  reason  of  the 
inherent  uncertainty  and  ambiguity  of  the  subject  itself,  and 
partly,  perhaps,  because  of  a  wide  range  of  judicial  discussion  not 
always  entirely  harmonious.  The  learned  judge  who  tried  the  case 
at  the  Circuit,  in  his  charge  to  the  jury,  realized  and  explained  the 
difficulty  of  applying  the  appropriate  legal  rules  to  the  particular 
facts  of  transactions  like  that  under  discussion. 

It  maj  aid  therefore  to  clearness  of  statement  and  accuracy  of 
conclusion,  and  perhaps  remove  some  elements  of  debate,  if  we 
consider  the  legal  attitude  of  a  broker  employed  to  buy  or  sell 
property,  and  his  relative  rights  and  duties  as  the  basis  of  his  claim 
for  compensation. 

The  duty  he  undertakes,  the  obligation  he  assumes  as  a  condition 
of  his  right  to  demand  commissions,  is  to  bring  the  buyer  and  seller 
to  an  agreement.  In  that  all  the  authorities  substantially  concur, 
although  expressing  the  idea  with  many  differences  of  phrase  and 
illustration.  The  description  and  definition  of  a  broker  involves 
this  view  of  his  duty.  Story  says,  "  The  true  definition  of  a  broker 
seems  to  be  that  he  is  an  agent  employed  to  make  bargains  and 
contracts  between  other  persons  in  matters  of  trade,  commerce  or 
navigation  for  a  compensation  commonly  called  brokerage."  Story 
on  Agency,  §  28,  p.  25.  In  Pott  vs.  Turner,  6  Bing.  703,  706,  a 
broker  is  more  tersely  and  quite  accurately  described  as  "  one  who 
makes  a  bargain  for  another  and  receives  a  commission  for  so 
doing."  In  Barnard  vs.  Monnot  it  was  said,  that  the  duty  of  the 
broker  consisted  in  bringing  the  minds  of  the  vendor  and  vendee 
to  an  agreement.  34  Barb.  90.  In  ^'ylie  vs.  Marine  Notional 
Banh,  61  N.  Y.  416,  it  was  held  that  to  entitle  the  broker  to  com- 
missions, he  must  produce  a  purchaser  ready  and  willing  to  enter 
into  a  contract  on  the  employer's  terms.  This  implies  and  involves 
the  agreement  of  buyer  and  seller,  the  meeting  of  their  minds, 
produced  by  the  agency  of  the  broker.  In  Moses  vs.  Bierling,  31 
31  N.  Y.  462,  it  was  declared  that  the  authorities  clearly  estab- 
lished the  proposition  that  until  the  broker  has  faithfully  dis- 
charged the  obligation  assumed  in  the  contract  with  his  principal, 
he  is  not  entitled  to  his  agreed  commission,  and  that  obligation  is 
fulfilled  only  when  he  produces  a  party  ready  to  make  the  pur- 
chase at  a  satisfactory  price.     In  Glentworth  vs.  Luther,  21  Barb. 


304  Oases  os  Agency.  [Book  I 

147,  it  was  declared  that  the  commissions  were  earned  when  the 
broker  produces  to  his  principal  a  party  with  whom  the  owner  ia 
satisfied,  and  who  contracts  for  the  purchase  at  an  acceptable 
price. 

It  was  not  meant  by  these  cases,  and  we  do  not  mean,  that  the 
broker  must  of  necessity  be  present  and  an  active  participator  in 
the  agreement  of  buyer  and  seller  when  that  agreement  is  actually 
concluded.  He  may  just  as  effectually  produce  and  create  the 
agreement,  though  absent  when  it  is  completed  and  taking  no  part 
in  the  arrangement  of  its  final  details,  And  it  is  to  describe  such 
instances  that  courts  have  used  a  different  form  of  expression, 
entirely  accurate  in  its  proper  application,  but  capable  of  being 
warped  from  its  obvious  meaning.  In  Lloyd  vs.  Matthews,  51  N. 
y.  132,  the  phrase  used  was  that  the  broker  was  entitled  to  reward 
when  the  sale  was  effected  through  his  agency  as  the  procuring 
cause.  And  in  Lyon  vs.  Mitchell,  36  N.  Y.  237,  the  broader 
language  is  used  that  his  efforts  must  have  lead  to  the  negotiations 
that  resulted  in  the  purchase  of  the  vessel.  But  in  all  the  cases, 
under  all  and  varying  forms  of  expression,  the  fundamental  and 
correct  doctrine  is,  that  the  duty  assumed  by  the  broker  is  to 
bring  the  minds  of  the  buyer  and  seller  to  an  agreement  for  a  sale, 
and  the  price  and  terms  on  which  it  is  to  be  made,  and  until  that 
is  done  his  right  to  commissions  does  not  accrue.  McGavock  vs. 
Woodlief,  20  How.  221;  Barnes  vs.  Roberts,  5  Bosw.  73;  Holly  vs. 
Gosling,  3  E.  D.  Smith,  262;  Jacobs  vs.  Kolff,  2  Hilt.  133;  Kock 
V8.  Emmerling,  22  How.  72;  Corning  vs.  Calvert,  2  Hilt.  56; 
Trundy  vs.  New  York  <&  H.  Steam  Co.  6  Eobt.  312;  Van  Lien  vs. 
Burns,  1  Hilt.  134. 

We  have  been  thus  particular  in  the  examination  and  statement 
of  the  rule,  because  of  a  possible  tendency  growing  out  of  a  vari- 
ety of  circumstances  and  modified  forms  of  expression,  to  give  it 
an  extent  and  meaning  not  at  all  intended. 

It  follows  as  a  necessary  deduction  from  the  established  rule, 
that  a  broker  is  never  entitled  to  commissions  for  unsuccessful 
efforts.  The  risk  of  a  failure  is  wholly  his.  The  reward  cornea 
only  with  his  success.  That  is  the  plain  contract  and  contempla- 
tion of  the  parties.  The  broker  may  devote  his  time  and  labor, 
and  expend  his  money  with  ever  so  much  of  devotion  to  the  interest 
of  his  employer,  and  yet  if  he  fails,  if  without  effecting  an  agree- 
ment or  accomplishing  a  bargain,  he  abandons  the  effort,  or  hia 
authority  is  fairly  and  in  good  faith  terminated,  he  gains  no  right  to 


Chap.  VII]  SiBBALD  vs.  Ieon  Co.  305 

commissions.  Ili  loses  the  labor  and  effort  which  was  staked  upon 
Buccess.  And  in  such  an  event  it  matters  not  that  after  his  failure^ 
and  the  termination  of  his  agency,  what  he  has  done  proves  of 
use  and  benefit  to  the  principal.  In  a  multitude  of  cases  that  must 
necessarily  result.  He  may  have  introduced  to  each  other  parties 
who  otherwise  would  never  have  met;  he  may  have  created 
impressions,  which  under  later  and  more  favorable  circumstances 
naturally  lead  to  and  materially  assist  in  the  consummation  of  a 
sale;  he  may  have  planted  the  very  seed  from  which  others  reap 
the  harvest;  but  all  that  gives  him  no  claim.  It  was  part  of  his 
risk  that  failing  himself,  not  successful  in  fulfilling  his  obligation, 
others  might  be  left  to  some  extent  to  avail  themselves  of  the  fruit 
of  his  labors. 

As  was  said  in  Wt/lie  vs.  Marine  National  Bank,  61  N.  Y.  416, 
in  such  a  case  the  principal  violates  no  right  of  the  broker  by  sell- 
ing to  the  first  party  who  offers  the  price  asked,  and  it  matters  not 
that  sale  is  to  the  very  party  with  whom  the  broker  had  been  negotiat- 
ing. He  failed  to  find  or  produce  a  purchaser  upon  the  terms 
prescribed  in  his  employment,  and  the  principal  was  under  no 
obligation  to  wait  longer  that  he  might  make  further  efforts.  The 
failure  therefore  and  its  consequences  were  the  risk  of  the  broker 
only.  This  however  must  be  taken  with  one  important  and  necessary 
limitation.  If  the  efforts  of  the  broker  are  rendered  a  failure  by 
the  fault  of  the  employer;  if  capriciously  he  changes  his  mind  after 
the  purchaser,  ready  and  willing,  and  consenting  to  the  prescribed 
terms,  is  produced;  or  if  the  latter  declines  to  complete  the  con- 
tract because  of  some  defect  of  title  in  the  ownership  of  the  seller, 
some  unremoved  incumbrance,  some  defect  which  is  the  fault  of 
the  latter,  then  the  broker  does  not  lose  his  commissions.  And  that 
upon  the  familiar  principle  that  no  one  can  avail  himself  of  the 
non-performance  of  a  condition  precedent  who  has  himself  occa- 
sioned its  non-performance.  But  this  limitation  is  not  even  an 
exception  to  the  general  rule  affecting  the  broker's  rights,  for  it 
goes  on  the  ground  that  the  broker  has  done  his  duty,  that  he  has 
brought  buyer  and  seller  to  an  agreement,  but  that  the  contract  is 
not  consummated  and  fails  through  the  after-fault  of  the  seller. 
The  cases  are  uniform  in  this  respect.  Moses  vs.  Bierling,  Glent- 
worth  vs.  Luther,  Van  Lien  vs.  Burns,  supra. 

One  other  principle  applicable  to  such  a  contract  as  existed  in 
the  present  case  needs  to  be  kept  in  view.     Where  no  time  for  the 
20 


306  Cases  on  Agexct.  [Book  I 

continuance  of  the  contract  is  fixed  by  its  terms,  either  party  is  at 
liberty  to  terminate  it  at  will,  subject  only  to  the  ordinary  require- 
ments of  good  faith.  Usually  the  broker  is  entitled  to  a  fair  and 
reasonable  opportunity  to  perform  his  obligation,  subject  of 
course  to  the  right  of  the  seller  to  sell  independently.  But,  that 
having  been  granted  him,  the  right  of  the  principal  to  terminate 
his  authority  is  absolute  and  unrestricted,  except  only  that  he  may 
not  do  it  in  bad  faith,  and  as  a  mere  device  to  escape  the  payment 
of  the  broker's  commissions.  Thus,  if  in  the  midst  of  negotiations 
instituted  by  the  broker,  and  which  were  plainly  and  evidently 
approaching  success,  the  seller  should  revoke  the  authority  of  the 
broker,  with  the  view  of  concluding  the  bargain  without  his  aid, 
and  avoiding  the  payment  of  commissions  about  to  be  earned, 
it  might  well  be  said  that  the  due  performance  of  his  obligation  by 
the  broker  was  purposely  prevented  by  the  principal.  But  if  the 
latter  acts  in  good  faith,  not  seeking  to  escape  the  payment  of 
commissions,  but  moved  fairly  by  a  view  of  his  own  interest,  he 
has  the  absolute  right  before  a  bargain  is  made,  while  negotiations 
remain  nnsuccessful,  before  commissions  are  earned,  to  revoke  the 
broker's  authority,  and  the  latter  cannot  thereafter  claim  compen- 
sation for  a  sale  made  by  the  principal,  even  though  it  be  to  a  cus- 
tomer with  whom  the  broker  unsuccessfully  negotiated,  and  even 
though,  to  some  extent,  the  seller  might  justly  be  said  to  have 
availed  himself  of  the  fruits  of  the  broker's  labor.  Thus,  in  Sat- 
tertJavaite  vs.  Vreeland,  3  Hun,  152,  it  was  held  that  the  broker 
earned  his  commissions  by  making  a  sale  on  the  terms  fixed  by  the 
principal  while  the  authority  continued. 

Judge  Daniels  said,  and  we  think  correctly,  that  *'to  main- 
tain a  claim  by  the  broker  for  his  commissions,  it  was  necessary 
that  he  should  be  able  to  show  that  he  had  either  procured  a  pur- 
chaser for  the  property  at  the  price  for  which  he  was  empowered  to 
sell,  or  that  the  defendant  had  deprived  him  of  the  opportunity  to 
do  so  while  the  privilege  lasted.*'  In  that  case,  after  the  termina- 
tion of  the  broker's  authority,  the  principal  sold  to  the  person  with 
whom  the  broker  had  negotiated  at  a  less  price;  and  it  was  held 
that  he  had  a  right  to  do  so,  unless  his  action  was  a  mere  device  to 
escape  the  payment  of  commissions.  Any  other  rule  would  pro- 
long a  contract  with  a  broker  indefinitely.  No  man  could  know 
when  he  was  freed  from  its  obligations,  and  a  liability  would  be 
imposed  not  contained  in  the  terms  of  the  contract,  and  essenti- 
ally perverting  its  legitimate  construction. 


Ohap.  VII]  SiBBALD  vs.  Iron  Co.  807 

We  may  now  apply  these  principles  to  the  facts  of  the  present  case. 
The  plaintiff  bc<;!;aD  his  efforts  to  sell  the  steel  rails  of  the  Bethle- 
hem Iron  Company  very  soon  after  authority  was  given  him.  In 
the  latter  part  of  December,  1873,  he  went  to  Canada,  and  pro- 
posed to  Mr.  Brydges,  who  was  managing  director  of  the  Grand 
Trunk  Railway,  to  sell  him  the  steel  rails  of  the  defendant's  manu- 
facture. Brydges  declined  the  proposition,  saying  he  was  not  then 
in  the  market,  but  when  he  was,  would  let  the  plaintiff  know.  On 
the  5th  of  January,  the  defendant  having  reduced  its  price  and 
fixed  it  at  $108  per  ton,  plaintiff  wrote  to  Brydges  telling  him  of 
the  reduction  and  that  the  defendant  offered  to  sell  at  $108  cur- 
rency. At  the  close  of  his  letter  the  broker  adds,  "  I  think  a  firm 
cash  offer  of  $105  to  $107  currency  would  be  accepted  by  the 
Bethlehem  Iron  Company.** 

This  suggestion  is  severely  criticised  by  the  appellant's  counsel 
and  with  some  apparent  reason.  The  broker  was  bound  to  main- 
tain a  steady  fidelity  to  the  interests  of  his  principal.  He  had  no 
right  to  sacrifice  the  interest  of  the  latter  for  the  benefit  of  the 
buyer,  and  yet  it  may  well  be  that  buyer  and  seller  could  only  be 
brought  to  the  consent  of  a  bargain  by  some  moderate  concession  as 
to  price,  and  that  the  broker  acted  fairly,  in  view  of  his  talk 
with  Hant  about  a  reduction,  in  making  the  suggestion  which  is 
assailed  as  a  violation  of  duty.  On  the  9th  of  January  plaintiff 
again  wrote  Brydges  that  defendant  was  anxious  for  an  order,  and 
inclined  to  accept  a  reduction.  On  February  5th  the  broker  again 
wrote  substantially  the  same  thing.  Between  the  20th  of  that 
month  and  the  8th  of  March  he  was  in  Montreal  having  other  busi- 
ness for  other  parties  and  accomplished  nothing.  On  the  7th  of 
April  he  received  a  telegram  from  Brydges  asking  the  price  of 
one  thousand  tons  of  steel  rails,  **  either  of  English  or  American 
manufacture,''  for  immediate  delivery.  This  seemed  a  hopeful 
inquiry.  Plaintiff  after  getting  the  price  from  Evans,  tele- 
graphed an  offer  for  the  defendant  at  $106  currency.  At  the 
same  time  the  plaintiff  wrote  Brydges,  repeating  the  offer  but 
also  transmitting  offers  by  other  parties  of  English  rails.  What 
that  meant,  and  what  its  effect  on  defendant's  interests  was,  is  made 
plain  by  the  further  fact  that  no  order  came  for  the  defendant's 
rails,  but  Sibbald  bought  for  the  Grand  Trunk,  on  the  11th  of 
April,  five  hundred  and  twenty  tons,  and  on  the  14th  of  April 
eighty  tons  of  English  rails.  Meanwhile,  on  the  11th  of  April,  he 
caused  to  be  sent  to  the  Grand  Trunk  Railway  a  broken  piece  of 


308  Cases  o^sr  Agexcy.  [Book  I 

defendant's  rail  to  show  the  quality  of  the  steel.  On  the  21st  of 
April  he  wrote  to  Hannaford,  the  chief  engineer  of  the  Grand  Trunk, 
explaining  the  object  of  sending  the  fractured  rail,  and  that  the 
defendant  would  roll  to  that  company's  section,  and  if  required, 
punch  or  bore  holes  round  in  rails. 

On  or  about  the  23d  of  April,  18T4,  plaintiff  received  a  telegram 
from  the  Grand  Trunk  railway,  asking  upon  what  terms  one  thou- 
sand tons  of  steel  rails  of  the  Bethlehem  Iron  Company  would  be 
delivered  at  Portland.  On  the  same  day  he  telegraphed  to  the 
defendant  to  know  the  lowest  price,  and  stating  that  the  rails 
inquired  about  were  for  the  Grand  Trunk.  Just  such  an  incident 
had  occurred  once  before,  as  we  have  seen,  and  nothing  had  come 
of  it.  At  that  time  a  price  had  been  named  but  no  purchase  had 
resulted.  Was  it  unreasonable  if  the  patience  and  confidence  of  the 
principal  became  exhausted?  Mr.  Hunt  telegraphed  that  he  would 
see  plaintiff  the  next  day.  He  did  so,  and  in  that  interview  declined 
to  name  a  price,  or  negotiate  further  through  plaintiff.  On  that 
same  day  the  latter  telegraphed  and  wrote  to  the  Grand  Trunk 
oflQcers  that  the  Bethlehem  Company  declined  to  name  a  price. 
This  ended  the  agency,  terminated  the  contract,  left  each  party 
at  entire  liberty,  if  the  action  of  the  defendant  Avas  within  its 
legal  rights  and  exercised  fairly  and  in  good  faith. 

The  efforts  of  the  plaintiff  had  been  thus  unsuccessful.  He  had 
not  made  a  bargain,  he  had  failed  to  bring  buyer  and  seller  to  an 
agreement,  after  having  had  four  months  of  opportunity,  and  now 
his  authority  was  terminated  without  his  haviug  earned  commis- 
sions. Very  plainly  he  had  acquired  no  right  to  them,  and  could 
acquire  no  right  to  them  from  anything  which  might  h;ippen  in  the 
future,  unless  upon  the  sole  and  only  ground  that  the  defendant 
terminated  the  agency  in  bad  faith  and  as  a  device  to  get  the  bene- 
fit of  plaintiff's  labors  without  paying  for  them. 

It  is  difficult  to  see  how  that  could  be  maintained,  and  yet  in 
his  charge  to  the  jury,  the  trial  judge  called  attention  to  the  claim 
that  on  this  same  23d  of  April,  Evans,  who  as  a  broker,  made  the 
final  sale,  and  who  had  learned  on  the  street  that  the  Grand  Trunk 
Railway  was  in  the  market  for  steel  rails,  wrote  that  fact  to  the 
defendant  and  began  the  negotiations  which  ended  in  a  sale.  He 
did  write  such  a  letter  to  Hunt,  but  it  is  plain  that  the  latter  did 
not  receive  it  until  the  25th  at  the  earliest,  and  not  until  after  he 
had  terminated  plaintiff's  agency.  He  could  not,  therefore,  have 
been  influenced  by  it,  and  the  evidence  of  bad  faith  had  nothing 


Chap.  VII]  SiBBALD  Ys.  Iron  Co.  809 

left  on  which  to  rest  except  the  fact  of  the  actual  sale  to  the  Grand 
Trunk  Eailway  on  the  13th  of  May,  which  sale  was  made  through 
Evans  and  his  brokerage  paid. 

Keeping  in  view  this  state  of  facts,  we  are  prepared  to  consider 
certain  other  alleged  errors  in  the  final  disposition  of  the  case. 
The  court  was  asked  to  direct  a  verdict  for  the  defendant  on  the 
ground  that  although  the  plaintiff  had  first  applied  to  the  defend- 
ant for  the  price  of  the  rails,  the  defendant  was  entirely  at  liberty 
to  refuse  his  services  and  to  make  a  sale  itself,  directly  or  through 
another  broker.  The  request  was  refused.  We  cannot  quite  say 
that  this  was  error  in  view  of  the  possible  question  of  bad  faith  in 
terminating  the  agency.  Slender  as  may  have  been  its  foundation 
there  was  perhaps  enough  in  the  circumstances  of  the  case  and  the 
facts  of  the  transaction  to  make  it  proper  to  submit  that  question 
to  the  jury.  It  was  a  question  peculiarly  within  their  province, 
and  which  the  court  could  hardly  be  justified  in  withholding  from 
their  consideration. 

The  court  was  then  asked  to  charge  that  the  defendant,  under 
the  circumstances,  had  the  right  to  refuse  to  use  the  services  of 
Mr.  Sibbald,  if  the  action  was  taken  in  good  faith,  without  any 
intent  to  deprive  him  of  his  commission.  The  proposition  involved 
in  this  request  was,  as  we  have  already  shown,  entirely  accurate 
and  sound,  and  should  have  been  so  presented  to  the  jury.  The 
trial  judge  however  was  unwilling  to  so  charge  without  adding  a 
material  qualification.  He  said,  "  I  charge  that  proposition,  but  I 
charge  it  with  qualification,  that  the  defendant  had  no  right  to 
refuse  to  avail  itself  of  those  things  which  the  broker  had  done  and 
then,  indirectly — no  matter  whether  in  good  faith  or  in  bad  faith — 
by  other  channels,  avail  itself  of  the  efforts  of  the  broker  with 
whom  it  has  declined  to  continue  the  negotiations."  There  was 
an  exception  both  to  the  refusal  to  charge  and  to  the  qualification 
added. 

It  is  apparent  that  the  request  and  the  charge,  taken  together, 
plainly  instructed  the  jury  two  things;  first,  that  a  seller  cannot, 
even  in  good  faith,  terminate  the  authority  of  a  broker  and  effect  a 
sale  afterwards  through  other  agencies,  and  freed  from  any  liability 
to  the  broker,  if  in  the  making  of  such  after-sale  the  latter's  pre- 
vious unsuccessful  efforts  are  in  fact  useful  and  aid  and  assist  in 
the  final  bargain;  and  second,  that  the  circumstances  of  the  case 
were  such  as  to  justify  the  inference  that  in  the  sale  actually  made 
the  seller  did  in  fact  avail  himself  of  the  previous  labors  of  the 


310  Cases  on  Agency.  [Book  I 

broker.  This  last  proposition,  without  being  distinctly  asserted, 
was  plainly  assumed  as  the  basis  upon  which  the  qualification  of 
the  request  to  charge  rested  and  was  rendered  necessary. 

The  practical  result  of  the  instruction  thus  given  was  in  hostility 
to  the  conclusions  we  have  derived  from  the  authorities.  It  made 
immaterial  the  good  faith  of  the  defendant  in  terminating  the 
authority  of  the  broker,  and  explicitly  denied  such  right  as  affect- 
ing commissions,  if  the  after-sale  was  in  fact  aided  and  assisted  by 
the  plaintiff's  previous  unsuccessful  efforts.  The  test  of  the  right 
to  recover  is  changed  from  the  question  of  the  principal's  good  faith 
in  terminating  the  agency,  to  the  question  whether,  notwithstand- 
ing that  fact,  the  new  and  independent  sale  was  helped  and  bene- 
fited by  the  previous  action  of  the  broker.  The  logical  result  of 
snch  a  doctrine  would  be  to  prevent  the  defendant  from  ever 
making  a  sale  of  steel  rails  to  the  Grand  Trunk  railway,  except  on 
condition  of  paying  a  commission  to  the  plaintiff.  For  the  one  only 
useful  thing  which  he  did  was  to  introduce  the  Bethlehem  rails  to 
the  notice  of  that  railway  company.  There  could  be  no  sale  there- 
after would  not  be  as  much  due  to  such  original  act  of  the  broker 
as  the  one  in  question.  It  could  always  be  said  with  equal  truth 
that  the  iron  company  was  availing  itself  of  the  broker^s  labor. 
The  doctrine  asserted  permits  a  recovery  for  unsuccessful  efforts, 
for  trying  to  effect  an  agreement  without  accomjilishing  one,  for 
merely  asking  a  purchaser  to  buy  without  getting  his  assent, 
because  though  the  agency  had  ended  without  commissions  earned, 
a  later  and  independent  negotiation  was  probably  easier  and  more 
likely  to  succeed  by  reason  of  such  previous  efforts.  The  charge 
had  a  clear  tendency  to  mislead  the  jury. 

Because  the  broker  originally  brought  the  Bethlehem  rails  to  the 
notice  of  the  Grand  Trunk  purchasing  officers,  and  thereafter 
accomplished  nothing  more  than  to  lessen  the  principal's  price  and 
sell  the  rails  of  its  rivals  to  the  proposed  customer,  he  is  held 
entitled  to  recover  commissions  on  a  sale  made  without  his  inter- 
vention and  after  his  agency  had  been  fairly  and  lawfully 
terminated.  Grant  that  what  he  did  may  justly  be  said  to  have 
aided  in  the  making  of  the  after-sale,  yet  that  does  not  furnish 
ground  for  recovery,  as  we  have  already  seen.  If  it  did,  such  an 
agency  might  pass  utterly  beyond  the  principal's  control.  The 
trial  judge,  in  the  earlier  part  of  this  charge,  had  stated  the  general 
rule  correctly,  and  as  we  hold  it  should  be.  He  said  to  the  jury,  "  II 
jou  find  from  the  evidence  in  any  given  case,  that  the  broker  haa 


Chap.  VII  ]  SiBBALD  vs.  Iron  Co.  811 

failed  to  carry  out  any  particular  transaction,  and  that  his  efforts, 
although  he  may  have  introduced  the  parties,  have  terminated,  and 
that  he  has  not  succeeded  in  making  the  trade,  then  the  principal 
has  a  perfect  right  to  resort  to  other  resources  for  the  purpose  of 
effectuating  that  trade."  If  the  charge  had  stopped  here  no  error 
would  have  been  committed.  But  it  did  not  stop  here.  At  its 
very  close,  and  as  the  last  words  left  with  the  jury,  the  doctrine, 
before  correctly  announced,  is  qualified  by  the  introduction  of  a 
new  and  wrong  element  which  could  scarcely  fail  to  lead  the  jury 
astray.  It  not  only  denied  that  unearned  commissions  were  finally 
cut  off  by  a  termination  of  the  broker's  authority  exercised  in  good 
faith,  but  confusing  the  essentially  different  ideas  of  an  endeavor 
to  make  some  sale,  and  negotiations  about  a  particular  sale, 
assumed  that  the  last  existed  when  the  authority  terminated,  and 
on  that  unwarranted  assumption  asserted  the  right  to  commissions 
on  the  sale  actually  made.  He  should  have  submitted  the  question 
of  good  faith  in  terminating  the  agency  to  the  jury,  and  told  them 
if  they  found  that  fact,  that  no  commissions  could  accrue  on  the 
after-sale,  however  much  in  making  it  the  seller  availed  himself  of 
the  previous  labors  of  the  broker. 

If,  after  the  broker  has  been  allowed  a  reasonable  time,  within 
which  to  produce  a  buyer  and  effect  a  sale,  he  has  failed  to  to  so, 
and  the  seller  in  good  faith  and  fairly  has  terminated  the  agency 
and  sought  other  assistance  by  the  aid  of  which  a  sale  is  consum- 
mated, it  does  not  give  the  original  broker  a  right  to  commissions, 
because  the  purchaser  is  one  whom  he  introduced  and  the  final  sale 
is  in  some  degree  aided  or  helped  forward  by  his  previous  unsuccess- 
ful efforts.  If  the  charge  was  intended  to  mean  this,  and  no  more 
than  this,  the  language  chosen  was  unfortunate,  for  its  direct  tend- 
ency was  to  covey  to  the  jury  an  entirely  different  idea  and  one 
with  which  we  do  not  concur.  For  this  error  the  judgment  should 
be  reversed. 

Judgment  reversed;  new  trial  granted,  costs  to  abide  the  event. 

Judgment  reversed. 

All  concur,  except  Kapallo,  J.,  absent. 

Note.— See,  also,  Cassady  vs.  Seeley,  69  Iowa  509;  Fisk  vs.  Henarie,  13 
Oreg.  156;  Steicart  vs.  Matliei-,  '62  Wis.  344;  Desmond  vs.  Stcbbins,  140  Slass. 
339;  Veazie  vs.  Parker,  72  Me.  443;  Sussdorff  vs.  Schmidt,  55  N.  Y.  319; 
Attrill  vs.  Patterson,  58  Md.  226;  Conkling  vs.  Krakauer,  70  Tex.  735; 
Armstrong  vs.  Lowe,  76  Cal.  616;  Fischer  vs.  Bell,  91  Ind.  243;  Goss  vs. 
Stevens,  32  Minn.  472;  Neilson  vs.  Lee,  60  Cal.  555;  Potvin  vs.  CuiTan,  13 
Keb.  302;  Hamlin  vs.  Schulte,  34  Minn.  534. 


312  Oases  on  Agency.  [Book  I 

(41  Kansas,  496.) 

DURKEE  vs.  GUNN. 

(Supreme  Court  of  Kansas,  January,  18S9.J 

Durkee  and  Stout  on  the  1st  of  June,  1886,  entered  into  a  writ- 
ten contract  with  Gnnn  &  Man,  by  which  the  latter  were  given 
the  exclusive  sale  of  certain  real  estate  belonging  to  Durkee  & 
Stout.  Gunn  &  Marr  were  to  plat,  advertise  and  push  the  sale  at 
their  own  expense  and  were  to  have  for  their  commission  one  half 
of  the  profits  above  $300  per  acre.  The  contract  was  to  continue 
until  October  1,  1887.  Gunn  &  Marr  caused  the  ground  to  be 
platted,  advertised  it  and  entered  upon  the  sale  of  the  land.  On 
July  23,  1886,  Marr  sold  out  his  interest  in  the  business  of  Gunn 
&  Marr,  including  his  interest  in  the  contract,  to  Gunn,  and  the 
latter  continued  to  advertise  and  push  the  sale  alone,  to  the  knowl- 
edge of  Durkee  &  Stout,  who  knew  of  their  dissolution,  and  with- 
out objection.  Early  in  February,  1887,  Gunn  reported  the  sale 
of  two  lots  to  Durkee  &  Stout,  when  they  notified  him  that  he  was 
no  longer  their  agent  and  repudiated  his  authority.  At  that  time, 
the  land  would  have  sold  for  1750  per  acre.  The  court  below 
found  Gunn  entitled  to  recover  for  the  breach  of  the  contract  and 
assessed  his  damages  at  his  share  of  the  profits  at  thai  price. 
Defendants  allege  error. 

J.  D.  McCleverty,  for  plaintiffs  in  error. 

Ware,  Biddle  <&  Cory,  for  defendant  in  error. 

HoiiTON,  C.  J.  I.  It  is  claimed  by  Messrs.  Durkee  &  fitout, 
who  entered  into  a  contract  with  Messrs.  Gunn  &  Marr  on  June  1, 
1886,  that  the  dissolution  of  the  firm  of  Gunn  &  Marr  terminated 
their  agency;  that  Marr,  the  retiring  member  of  the  firm,  had  no 
authority  to  sell  or  transfer  his  interest  or  the  interest  of  the  firm 
in  the  contract  of  June  1,  1886,  to  Gunn;  therefore,  that  as  no 
new  contract  was  made  in  writing  by  Gunn,  he  could  not  recover 
as  agent  or  otherwise  for  any  damages  or  services  subsequent  to 
July  23,  1886,  the  date  of  the  dissolution.  Against  this  it  was 
urged  that  Gunn,  from  the  findings  of  the  trial  court,  as  continu- 
ing partner,  succeeded  by  the  terms  of  his  agreement  with  Marr  ♦o 
all  the  rights  of  the  firm,  if  Messrs.  Durkee  &>  Stout  recognized  «3r 
approved  of  his  agency  after  the  dissolution  of  the  firm.  It  is  held  bj  a 


Chap.  VII]  DuBKBB  vs.  Gunk.  313 

number  of  cases  that  an  assignment  by  one  partner  of  all  his  interest 
in  the  partnership  is  ipso  facto  a  dissolution  of  the  partnership, 
though  the  assignment  is  made  to  another  partner.  Marquand  vs. 
Mfg.  Co.,  17  Johns.  (N.  Y.)  625;  Edens  vs.  Williams,  36  111.  252; 
Ixogers  vs.  Nichols,  20  Tex.  719.  But  in  Taft  vs.  Buffum,  14 
Pick.,  ( Mass.)  322,  it  is  held  that  an  assignment  by  one  partner  to 
another  of  his  interest  in  the  partnership  property  is  not  ipso  facto 
a  dissolution  of  the  partnership.  Whether  it  bo  operated  depended 
on  its  terms  as  to  the  intention  of  the  parties.  See  also  Monroe 
vs.  Hamilton,  60  Ala.  226;  Bvford  vs.  Neely,  2  Dev.  Eq.  481. 

The  findings  of  the  trial  court,  however,  show  that  the  assign- 
ment from  Marr  to  Gunn  was  recognized  by  Durkee  &  Stout  after 
it  was  made.  Marr  does  not  claim  any  interest  in  the  contract, 
either  for  himself  or  for  the  old  firm  of  Gunn  &  Marr.  After  the 
dissolution  on  July  23,  1886,  Gunn  continued  to  act  under  the  con- 
tract of  June  1,  with  the  knowledge  and  without  the  objection  of 
Durkee  &  Stout.     *    *    * 

In  our  opinion,  on  account  of  the  conduct  and  acts  of  all  the 
parties,  the  rights,  duties  and  liabilities  of  "W.  C.  Gunn  were  the 
same  after  dissolution  as  before,  excepting  that  the  contract  of 
June  1,  1886,  was  to  be  fully  carried  out  on  the  part  of  Gunn  & 
Marr  by  Gunn  only.  Therefore,  the  point  made  that  the  contract 
of  June  1,  was  in  its  nature  personal  only,  and  hence  not  assignable, 
need  not  under  the  findings  be  discussed.     *     ♦     * 

II.  As  neither  Messrs.  Gunn  &  Marr  nor  the  continuing  member 
of  the  firm,  W.  C.  Gunn,  had  any  interest  in  the  land  described  in 
the  contract,  but  only  shared  in  the  surplus  or  profits,  the  agency 
of  Gunn  was  revocable.  Hawley  vs.  Smith,  45  Ind.  183.  But, 
although  Messrs.  Durkee  &  Stout  had  the  power  to  annul  the  con- 
tract and  refuse  to  permit  Gunn  to  act,  yet  when  they  so  refused, 
without  any  just  reason  or  excuse,  after  having  recognized  Gunn 
as  the  continuing  member  of  the  firm,  they  were  liable  to  him  for 
all  damages  resulting  proximately  from  the  breach  of  the  contract. 

III.  The  court  allowed  Gunn  as  his  measure  of  damages  one- 
half  of  what  the  land  would  have  sold  for  at  the  commencement 
of  his  action  above  the  price  Messrs.  Durkee  &  Stout  agreed  to 
accept  for  the  land,  as  stated  in  the  contract.  It  is  contended 
that  the  rule  followed  was  erroneous.     *     *     * 

"We  think  that  Gunn,  owing  to  the  wrongful  revocation  of  his 
agency  by  Messrs.  Durkee  &  Stout  in  the  early  part  of  February, 
1887,  was  entitled  to  recover  such  compensation  or  damages  as 


814  Cases  on  Agency.  [Book  I 

wonld  be  equal  in  amonnt  to  his  share  of  the  proJBts  which  would 
have  resulted  had  the  lands  been  sold  by  him.  HawUy  vs.  Smith, 
supra.  This  is  what  he  really  recovered.  Therefore  no  erroneous 
rule  was  followed,  nor  are  the  damages  allowed  excessive.  Messrs, 
Durkee  &  Stout  cannot  take  advantage  of  their  OAvn  wrongful  acts, 
and  as  Gunn  was  prevented  by  them  from  performing  a  contract, 
his  remedy  is  the  same  as  if  he  had  performed. 

We  perceive  no  error  in  the  record,  and  therefore  the  judgment 
of  the  district  court  will  be  affirmed. 


(42  Minnesota,  526.) 

ALWOETH  vs.   SEYMOUR. 

CSupreme  Court  of  Minnesota.  February,  1890.) 

Appeal  by  defendant  from  an  order  overruling  her  demurrer  to 
plaintiil's  complaint,  which  alleged  the  following  facts.  Defendant, 
who  was  a  widow  residing  in  Canada,  had  an  interest  in  lands  left 
by  her  husband  in  Minnesota,  but  the  location,  value  and  amount 
of  these  lands  were  unknown  to  her.  Plaintiff  was  an  abstracter 
of  titles,  and  made  an  agreement  with  defendant  to  look  up  and 
recover  her  interests  in  these  lands,  by  suit  if  necessary,  at  his  own 
expense  if  unsuccessful,  but  if  successful,  for  half  of  the  proceeds 
after  deducting  the  expenses.  After  doing  work  worth  $100,  and 
becoming  liable  to  attorneys  for  services  to  the  amount  of  $100, 
the  defendant  repudiated  the  agreement.  Defendant's  interest 
was  worth  $25,000.  The  complaint  prayed  specific  performance 
of  the  agreement;  that  defendant  be  enjoined  from  conveying  any 
of  the  lands  until  plaintifL's  expenses  had  been  paid  and  one-half 
of  the  land  conveyed  to  him  and  that  his  disbursements  and 
expenses  be  declared  a  lien. 

True  &  Wetherhy,  for  appellant. 
Draper  <&  Davis,  for  respondent, 

Mitchell,  J.  The  complaint  in  this  action  was  evidently 
framed  with  reference  to  compelling  specific  performance  of  the 
contract  declared  on.  The  point  urged  by  defendant  in  support  of 
her  demurrer  is  that  the  contract  is  champertoua. 

I.  It  is  not  necessary  to  determine  here  whether  or  not  the  com- 


Chap.  VII]  Alwoeth  vb.  Seymour.  816 

mon  law  as  to  champerty  is  in  force  in  this  state,  because  there 
are  at  least  two  reasons  why  plaintiff  cannot  have  specific  perform- 
ance in  this  case:  (1)  The  contract  did  not  create  a  power 
**  coupled  with  an  interest/'  but  a  mere  naked  agency,  by  which 
the  defendant  employed  plaintiff  as  her  agent  to  perform  certain 
services,  as  compensation  for  which  he  was  to  receive  a  share  of  the 
results  of  the  execution  of  the  agency.  It  is  not  enough  to  consti- 
tute a  "  power  coupled  with  an  interest "  that  plaintiff  was  to  have 
an  interest  in  the  proceeds  arising  from  the  execution  of  the 
agency.  There  must  be  an  interest  in  the  thing  itself  which  is  the 
subject  of  the  power,  and  not  merely  in  that  which  is  produced  by 
the  exercise  of  the  power.  A  power  "  coupled  with  an  interest " 
is  one  engrafted  on  an  estate,  or  on  the  thing  itself;  and  the  power 
and  the  estate  must  be  united  and  co-exist.  This  could  not  be 
under  this  contract,  for  by  its  terms  the  plaintiff  was  only  to  have 
an  interest  in  the  property  recovered  through  the  execution  of  the 
agency. 

It  being,  therefore,  a  case  of  a  mere  agency  or  naked  power,  the 
defendant  had  the  power  (as  distinguished  from  the   right)   to 
revoke  it  at  any  time.      Of  course  if  she  revoked  it  without  right, 
plaintiff  would  have  his  action  for  damages  for  breach  of  the  con- 
tract, if  a  valid  one.     Mechem,  Ag.  §§  207-209;  Hunt  vs.  Rousma- 
nier,  8  Wheat.  174^os/p.  322*  Gilbert  vs.  Holmes,  64111.  548;  Hart- 
ley's Appeal,  53  Pa.  St.  212;  91  Am.  Dec.  207;  Barr  vs.  Schroeder, 
32  Cal.  609.     (2)   But,  even  assuming,  that  the  contract  created  a 
"power  coupled  with  an  interest,"  still  the  court  would  not  decree 
specific  performance,  because,  from  the  very  nature  of  the  contract, 
it  could  not  enforce  complete  performance  by  both  parties.     In 
other  words  there  is  no  mutuality  of  remedy.     It  calls  for  the 
personal  services  of  the  plaintiff  as  agent  for  the  defendant.     These 
services  are  as  yet  mainly  unperformed.      The  court  has  no  power 
by  its  decree  to  compel  him  to  perform  them,  much  less  to  direct 
how  he  shall  perform  them;  and  specific  performance  will  not  be 
decreed  unless  the  court  can  at  the  time  enforce  the  contract  on 
both  sides  so  that  the  whole  agreement  will  be  carried  into  effect 
according  to  its  terms.     If  this  cannot  be  judicially  secured  on  both 
sides  it  ought  not  to  be  compelled  on  one  side,  and  the  other  party 
left  at  liberty  to  perform  or  not,  or  to  perform  in  such  a  way  as  suits 
his  own  interests.    Fry,  Spec.  Perf.  §  440;  Pom.  Eq.  Jur.  §  1405, 
and  notes;  Pom.  Spec.  Perf.  §§  165,  166. 

II.  But,  although  the  complaint  does  not  state  a  case  entitling 


316  Cases  on  Agency.  [Book  I 

plaintiff  to  the  relief  asked  for,  viz.,  specific  performance,  yet  the 
demurrer  was  properly  overruled,  because  it  states  facts  entitling 
him  to  judgment  for  $200,  the  value  and  amount  of  his  services 
and  disbursements  rendered  and  made  or  incurred  in  the  execution 
of  his  agency.  It  is  well  settled  by  the  decisions  of  this  court,  that 
if  a  complaint  states  facts  constituting  a  cause  of  action  entitling 
the  party  to  any  relief,  either  legal  or  equitable,  it  is  not  demurrable 
because  it  asks  for  the  wrong  relief.  Canty  vs.  Latterner,  31 
Minn.  239;  Leuiliold  vs.  Young,  32  Minn.  122.  There  was 
nothing  illegal  in  the  character  of  the  services  contracted  for.  If 
there  was  anything  unlawful,  it  was  in  the  provision  as  to  com- 
pensation. But,  admitting  that  the  contract  was  void,  as  champ- 
ertous,  it  does  not  follow  that  plaintiff  thereby  forfeits  his  right  to 
compensation  for  the  services  he  has  performed,  and  the  disburs- 
ments  he  has  made,  for  the  defendant  as  her  agent.  Stearns  vs. 
Felker,  28  Wis.  594;  Thurston  vs.  Percival,  1  Pick.  4.  15;  Rnst  vs. 
Larue,  4  Litt.  (Ky.)  411,  14  Am.  Dec.  172;   Walsh  vs.  Shumway, 

65  111.  471. 

Order  affirmed. 

Note* — Courts  will  not  grant  specific  performance  of  contracts  for  the 
rendition  of  personal  services  involving  the  exercise  of  special  skill,  judg- 
ment and  discretion,  continuous  in  their  nature  and  running  through  bjx 
indefinite  period  of  time.  Iron  Age  Publishing  Co.  vs.  Western  Union 
Telegraph  Co.,  (1887)  83  Ala.  498,  8  Am.  St.  Rep.  758.  "Contracts  for  per- 
sonal service  are  matters  for  courts  of  law.  and  equity  will  not  tmdertakea 
Bpecific  performance;  2  Kent's  Com.  258,  note  C;  HamUin  vs.  Dinneford, 
2  Edw,  Ch.  (N.  y.)  529;  Sanquirico  vs.  Benedetti,  1  Barb.  (N.  Y.)  315; 
Eaight  vs.  Badgeley,  15  Barb.  (N.  Y.)  499;  De  Rivafinoli  vs.  Corsetti,  4 
Paige  (N.  Y.)  264,  25  Am.  Dec.  582."  Per  Andrevs^s,  C.  J.,  in  The  William 
Rogers  Mfg.  Co.  vs.  Rogers  (1890)  58  Conn.  35G,  18  Am.  St.  Rep.  278.  See. 
also,  Clark's  Case,  1  Blackf.  (Ind.)  122,  12  Am.  Dec.  213  and  note.  See, 
ako,  following  case  and  note. 


(18  Oregon,  221,  17  Am.  St.  Rep.  726.) 

00 RT  vs.  LASSARD. 

f Supreme  Court  of  Oregon,  December,  1SS9.J 

Action  for  injunction  to  prevent  violation  of  a  contract  to  render 
personal  services.     Refused.     Plaintilf  appeals. 
Sears  £  Beach,  for  the  appellant. 


Chap.  VII J  COET  vs.  Lassaed.  817 

C.  H.  Hetvitt,  for  the  respondents. 

Lord,  J.  This  is  a  suit  wherein  the  plaintiff,  who  is  a  theatricil 
manager,  seeks  to  enjoin  and  prevent  the  defendants,  who  are 
acrobats,  from  performing  at  a  rival  theater  in  the  same  place. 
The  plaintiff  alleges,  among  other  things,  that  the  plaintiff  and 
defendants  entered  into  a  contract  whereby  it  was  agreed  that  the 
defendants  were  to  perform  as  acrobats  exclusively  for  the  plaintiff 
during  a  period  of  six  weeks,  at  a  salary  of  sixty  dollars  per  week, 
etc.;  that  the  plaintiff  has  performed  all  the  conditions  of  his  said 
contract,  and  gone  to  large  expense  in  advertising,  etc.,  and  would 
have  derived  large  emoluments  from  the  performance  of  the 
defendants,  which  are  alleged  to  be  unique  and  attractive;  that 
said  defendants,  after  performing  for  the  plaintiff  for  the  space  of 
three  weeks,  refused  to  perform  longer,  and  engaged  themselves  to 
perform  as  acrobats  at  another  theater  mentioned,  in  said  city; 
and  that  said  performance  of  the  said  defendants  will  attract  large 
crowds,  etc.,  and  will  largely  diminish,  if  permitted  to  be  given, 
the  receipts  of  the  plaintiff,  and  cause  an  irreparable  loss,  etc.,  and 
diminish  the  attractions  of  his  said  theater,  etc.,  that  the  said 
defendants  are  entirely  impecunious,  and  unable  to  respond  to  an 
action  for  a  breach  of  the  contract,  etc. 

The  answer  denies  nearly  all  the  material  allegations,  but  admits 
the  hiring,  etc.,  and  then  avers  affirmatively  that  the  plaintiff 
failed  to  fulfill  his  part  of  the  contract,  etc.,  and  that  the  plaintiff 
discharged  them,  etc. ;  all  of  which  was  put  in  issue  by  the  reply. 
Upon  all  the  issues  presented  by  the  pleadings,  the  finding  of  the 
court  was  favorable  to  the  plaintiff,  with  this  exception:     **That 
the  performance  of  the  said  defendants  was  not  of  a  unique  or 
unusual  character,  but  that  of  an  ordinary  acrobat  and  tumbler, 
which  could  have  been  easily  supplied,  with  little  or  no  delay  or 
expense;  and  that  said  service  was  of  a  common  and  ordinary  char- 
acter, and  not  such  as  could  be  enjoined  in  equity  for  a  breach  of 
contract  to  perform,"  etc.     As  a  result,  the  court  found,  as  a  con- 
clusion of  law,  that  the  plaintiff  was  not  entitled  to  any  relief  in 
equity,  and  that  his  suit  be  dismissed.     The  contention  of  counsel 
for  the  plaintiff  is  to  this  effect:    1.  That  it  is  immaterial  whether 
the  performance  is  unique,  or  involves  special  knowledge  or  skill; 
and   2.  That  the  finding  is  contrary  to  the  evidence,  which  will 
show  that  the  performance  was  unique  and  unusual.     In  this  case 
there  is  no  negative  clause  in  the  contract;  but  the  suit,  as  decided 


318 


OJlSES  02r  Agency.  [Book  I 


by  the  conrt,  assumes  and  admits  that  snch  a  stipulation  is  not  a 
prerequisite  to  the  exercise  of  jurisdiction,  but  that  it  is  enough  to 
warrant  equity  to  interfere  if  the  contract  alleged  to  have  been 
broken  stipulated  for  services  which  are  unique  and  extraordinary 
in  their  character,  -or  which  involve  personal  skill  or  knowledge  or 
ability,  and  provided  that  such  services  were  to  be  rendered  at  a 
particular  place  or  places,  and  for  a  specified  time. 

The  question  whether  a  court  of  equity  will  apply  the  preventive 
remedy  of  injunction  to  contracts  for  the  services  of 
professional  workers  of  special  merit,  or  leave  them  to 
the  remedy  at  law  for  damages,  has  been  the  subject 
of  much  discussion,  and  the  existence  of  the  jurisdiction 
fully  established.  It  is  not,  perhaps,  possible,  nor  is  it  neces- 
sary, to  reconcile  the  decisions;  but  the  ground  of  the  jurisdic- 
tion, as  now  exerted,  rests  upon  the  inadequacy  of  the  legal  remedy. 
In  an  early  English  case,  where  the  jurisdiction  was  invoked  to 
prevent  the  actor  Kean  from  performing  at  another  theater  upon 
a  contract  for  personal  services,  at  which  there  was  a  stipulation  to 
the  effect  that  he  should  not  perform  at  any  other  theater  in  Lon- 
don during  the  period  of  his  engagement,  it  was  held,  as  the  court 
could  not  enforce  the  positive  part  of  the  contract,  it  would  not 
restrain  by  injunction  a  breach  of  the  negative  part.  KemUe  vs. 
Kean,  6  Sim.  333.  But  this  case  was  expressly  overruled  in  Lnm- 
ley  vs.  Wagner,  1  De  Gex,  M.  &  G.  604,  upon  a  like  contract  for 
personal  services,  to  sing  during  a  certain  period  of  time,  at  a 
particular  theater,  and  not  to  sing  elsewhere  without  written 
authority,  upon  the  ground  that  the  positive  and  negative  stipula- 
tions of  such  contract  formed  but  one  contract,  and  that  the  court 
would  interfere  to  prevent  the  violation  of  the  negative  stipula- 
tion, althongh  it  could  not  enforce  the  specific  performance  of 
the  entire  contract. 

In  delivering  this  opinion,  among  other  things,  the  lord 
chancellor  said:  "  The  agreement  to  sing  for  the  plaintiff,  during 
three  months,  at  his  theater,  and  during  that  time  not  to  sing  for 
anybody  else,  is  not  a  correlative  contract.  It  is,  in  effect,  one 
contract;  and  though,  beyond  all  doubt,  this  court  could  not  inter- 
fere to  enforce  the  specific  performance  of  the  whole  of  this  con- 
tract, yet,  in  all  sound  construction,  and  according  to  the  true 
spirit  of  the  agreement,  the  engagement  to  perform  for  three 
months  at  one  theater  must  necessarily  exclude  the  right  to  per- 
form at  the  same  time  at  another  theater.     It  was  clearly  intended 


Chap.  VII]  CoET  vs.  Lassard.  819 

that  J.  Wagner  was  to  exert  her  vocal  abilities  to  the  ntmost  to  aid 
the  theater  to  which  she  agreed  to  attach  herself.  I  am  of  opinion 
that  if  she  had  attempted,  even  in  the  absence  of  any  negative 
stipulation,  to  perform  at  another  theater,  she  would  have  broken 
the  spirit  and  true  meaning  of  the  contract,  as  much  as  she  would 
with  reference  to  the  contract  into  which  she  had  actually  entered.'* 

In  Montague  vs.  Flocldon,  L.  E.  16  Eq.  189,  it  was  held  that  an 
actor  who  enters  into  a  contract  to  perform  for  a  certain  period  at 
a  particular  theater  may  be  restrained  by  injunction  from  perform- 
ing at  any  other  theater  during  the  pendency  of  his  engagement, 
notwithstanding  that  the  contract  contains  no  negative  clause 
restricting  the  actor  from  performing  elsewhere. 

Referring  to  LumUy  vs.  Wagner,  1  De  G.  M.  &  G.  604,  the  vice- 
chancellor  said:  "It  happened  that  the  contract  did  contain  a 
negative  stipulation,  and  finding  it  there.  Lord  St.  Leonard  relied 
upon  it;  but  I  am  satisfied  that  if  it  had  not  been  there  he  would 
have  come  to  the  same  conclusion,  and  granted  the  injunction  on 
the  grounds  that  Mdlle.  Wagner,  having  agreed  to  perform  at  Mr. 
Lumley's  theater,  could  not  at  the  same  time  be  permitted  to  per- 
form at  Mr.  Gye's.  But  however  that  may  be,  it  is  comparatively 
unimportant,  because  the  subsequent  authorities  have  completely 
settled  this  point.'* 

As  a  result  of  these  English  authorities,  while  conceding  that 
specific  performance  of  such  contracts  could  not  be  enforced,  the 
jurisdiction  is  established  that  relief  may  be  granted  on  a  contract 
for  such  services,  even  though  it  contains  no  negative  clause,  upon 
the  ground  that  a  contract  to  act  or  play  at  a  particular  place  for  a 
specified  time  necessarily  implies  a  prohibition  against  performing 
at  any  other  place  during  that  period.  The  American  courts, 
while  they  recognize  the  existence  of  the  jurisdiction,  have  exhibited 
much  hesitancy  in  applying  it  to  such  enlarged  uses.  Until  Bali/ 
vs.  Smith,  49  How.  Pr.  150,  was  decided,  the  doctrine  of  Lumley 
vs.  Wagner,  1  De  Gex,  M.  &  G.  604  was  either  entirely  rejected 
or  only  partially  accepted;  Sanquirico  vs.  Benedetti,  1  Barb.  315; 
Hamblin  vs.  Binnefvrd,  2  Edw.  Ch.  528;  Fredricks  vs.  Mayer,  13 
How.  Pr.  566;  Btitler  vs.  Galletti,  21  How.  Pr.  465;  Btirton  vs. 
Marshall,  4  Gill,  487;  Hayes  vs.   Willio,  11  Abb.  Pr.  N.  S.,  167. 

In  that  case  {Baly  vs.  Smith.  49  How.  Pr.  150),  the  authorities 
are  carefully  discriminated,  and  the  injunction  was  granted 
restraining  an  actress  from  violating  her  agreement  to  play  at  the 
plaintiff's  theater  for  a  stated  period;  and  the  case  is  on  all  fonra 


320  Oases  on  Agency.  [Book  I 

with  LumUy  vs.  Wagner,  1  De  Gex,  M.  &  G.  604.  See,  also,  Hahn 
vs.  Concordia  Society,  43  Md.  465;  McCiull  vs.  Braliam,  16  Fed. 
Kep.  37.  In  Fredericks  w.  Mayer,  13  How.  Pr.  567,  and  Butler 
vs.  Galletti,  21  How.  Pr.  466,  the  court  indicates  the  principle 
that  where  the  services  involve  the  exercise  of  powers  of  the  mind, 
as  of  writers  or  performers,  which  are  purely  and  largely  intellec- 
tual, they  may  form  a  class  in  which  the  court  will  interfere,  upon 
the  ground  that  they  are  individual  and  peculiar. 

In  these  cases  the  element  of  mind  furnishes  the  rule  of  distinc- 
tion and  decision,  as  distinguished  from  what  is  mechanical  and 
material,  and  would  exclude  professional  workers,  such  as  dancers 
and  acrobats,  whose  performances  are  largely  mechanical,  however 
unique  or  extraordinary  such  performance  may  be.  But  it  is 
apprehended  that  this  distinction  cannot  be  maintained:  for  the 
fact  is  that  such  actors  do  often  possess  special  merit  of  extra- 
ordinary qualifications  in  their  line,  which  makes  their  professional 
performances  distinctly  personal  and  peculiar,  and  that,  in  case  of 
their  default  on  a  contract  for  services,  there  would  be  the  same 
difficulty  in  supplying  their  places,  or  in  obtaining  from  others  the 
Bame  service,  as  would  happen  with  actors  whose  merits  were 
largely  intellectual,  showing  the  same  reason  to  exist  as  much  in 
the  one  case  as  in  the  other  for  the  application  of  the  preventive 
remedy  by  injunction. 

Relative  to  this  subject,  the  authorities  indicate  that  the  Ameri- 
can courts  have  refused  to  interfere,  unless  there  was  a  negative 
clause  forbidding  the  services  sought  to  be  enjoined.  Such  a  stipu- 
lation existed  in  the  contract  in  Daly  vs.  Smitli,  49  How.  Pr.  150, 
upon  which  relief  was  granted,  although  the  opinion  is  broad 
enough  to  include  contracts  without  such  stipulation,  when  the 
facts  show  that  the  contract  is  reasonable,  the  complainant  without 
fault,  and  that  he  has  no  adequate  remedy  at  law.  To  my  mind,  this 
is  the  correct  principle  to  apply  to  such  cases,  even  though  the  con- 
tracts contain  no  negative  stipulation;  for,  in  the  nature  of  things, 
a  contract  to  act  at  a  particular  theater  for  a  specified  time  neces- 
sarily implies  a  negative  against  acting  at  any  other  theater  during 
that  time.  The  agreement  to  perform  at  a  particular  theater  for 
a  particular  time  of  necessity  involves  an  agreement  not  to  perform 
at  any  other  during  that  time.  According  to  the  true  spirit  of 
Buch  an  agreement,  the  implication  precluding  the  defendant  from 
acting  at  any  other  theater  during  the  period  for  which  he  ha^ 
agreed  to  act  for  the  plaintiff  follows  aa  inevitably  and  logically  as 


Chap.  VII]  CoRT  vs.  Lassard.  321 

if  it  was  expressed.  So  that,  according  to  all  the  anthorities, 
where  one  contracts  to  render  personal  service  to  another  which 
requires  special  merit  or  qualifications  in  the  professional  worker, 
and,  in  case  of  default,  the  same  service  is  not  easily  obtained  from 
others,  although  the  court  will  not  interfere  to  enforce  specific  per- 
formance of  the  whole  contract,  yet  it  will  exert  its  preventive 
power  to  restrain  its  breach. 

While  it  is  true  that  the  court  cannot  enforce  the  affirmative 
part  of  such  contract,  and  compel  the  defendant  to  act  or  perform, 
it  can  enjoin  its  breach,  and  compel  him  to  abstain  from  acting 
elsewhere  than  at  the  plaintifE's  theater.  The  principle  upon 
which  this  doctrine  rests  is,  that  contracts  for  such  services  are 
individual  and  peculiar,  because  of  their  special  merit  or  unique 
character,  and  the  inadequacy  of  the  remedy  at  law  to  compensate 
for  their  breach  in  damages.  "  Where,*'  says  Prof.  Pomeroy,  "a, 
contract  stipulates  for  special,  unique,  or  extraordinary  personal 
services  or  acts,  or  for  such  services  or  acts  to  be  rendered  or  done 
by  a  perty  having  special,  unique,  and  extraordiuary  qualifica- 
tions, as,  for  example,  by  an  eminent  actor,  singer,  artist,  and  the 
like,  it  is  plain  that  the  remedy  at  law  of  damages  for  its  breach 
might  be  wholly  inadequate,  since  no  amount  of  money  recovered 
by  the  plaintiff  might  enable  him  to  obtain  the  same  or  the  same 
kind  of  services  or  acts  elsewhere,  or  by  employing  any  other  per- 
son.*' Pomeroy's  Eq.  Jur.,  sec.  1343.  Damages  for  a  breach  of 
such  contracts  are  not  only  difficult  to  ascertain,  but  cannot,  with 
any  certainty,  be  estimated;  nor  could  the  plaintiff  procure,  by 
means  of  any  damages,  the  same  services  in  the  labor  market,  as 
in  case  of  an  ordinary  contract  of  employment  between  an  artisan, 
a  laborer,  or  a  clerk,  and  their  employer. 

It  results,  then,  that  if  the  services  contracted  for  by  the  plaint- 
iff to  be  rendered  by  the  defendants  were  unique  or  extraordinary, 
involving  such  special  merit  or  qualifications  in  them  as  to  make 
such  services  distinctly  personal  and  peculiar,  so  that  in  case  of  a 
default  by  them  the  same  or  like  services  could  not  be  easily  pro- 
cured, or  be  compensated  in  damages,  the  court  would  be  warranted 
in  applying  its  preventive  jurisdiction  and  granting  relief;  but  other- 
wise, or  denied,  if  such  services  were  ordinary,  and  without  special 
merit,  and  such  as  could  be  readily  supplied  or  obtained  from  oth- 
ers without  much  difficulty  or  expense.  But  the  present  case  is 
far  from  being  one  of  such  character  as  falls  under  the  principle  of 
21 


322  Cases  on  Agency.  [Book  I 

the  anthorities  in  which  the  preventive  remedy  by  injunction  has 
been  allowed.  There  is  absolutely  nothing  in  the  evidence  to  show 
that  the  performances  of  the  defendants  were  nnique  or  of  any 
Bpecial  merit.  The  plaintiff  himself  will  not  even  admit  that  they 
are;  while  others  say  that  the  performances  were  "  great/'  **  pretty 
good,"  "  do  a  fair  act,"  etc.,  and  others,  that  their  performances 
were  merely  that  of  the  ordinary  acrobat,  and  that  there  would  be 
no  trouble  in  supplying  their  places,  or,  as  one  of  a  good  deal  of 
professional  experience  says,  *'  in  getting  a  thousand  to  do  just  as 
good  variety  business." 

Indeed,  according  to  our  view  of  the  evidence,  the  plaintiff  fails 
to  make  a  case  within  the  principle  in  which  equity  allows  relief 
for  a  breach  of  contract  for  personal  services,  and  the  court  below 
committed  no  error  in  dismissing  the  bill. 

Note. — ^Where  a  person  has  entered  into  a  definite  contract  to  perform 
Bervices  of  such  a  personal  and  unique  kind  that  they  cannot  be  easily 
replaced,  and  the  loss  of  them  cannot  adequately  be  compensated  by 
damages,  while  the  court  will  not  undertake  to  enforce  specific  performance 
of  the  contract  (see  Ahcorth  vs.  SeTjmour,  ante)  it  will  by  injunction 
restrain  the  person  from  violating  the  contract,  even  though  no  negative 
clause  is  included  in  the  contract.  See,  in  addition  to  the  cases  cited  in 
the  opinion:  Duff  vs.  Russell  (1892),  14  N.  Y.  S.  134;  Metropolitan  Exhib. 
Co.  vs.  Ward  (1890)  3  N.  Y.  S,  779:  Pratt  vs.  Montegriffo  (1890),  10  N.  Y.S. 
903. 


III. 
BY   OPERATION   OF   LAW. 


(8  Wheaton,  174.) 

HUNT    vs.    ROUSMANIER. 

fSupreme  Court  of  the  United  States,  February,  18SS.J 

Appeal  from  the  circuit  court  of  Rhode  Island. 

The  original  bill,  filed  by  the  appellant.  Hunt,  stated  that  Louis 
Rousmanier,  the  intestate  of  the  defendants,  applied  to  the  plaint- 
iff, in  January,  1820,  for  the  loan  of  one  thousand  four  hundred 
and  fifty  dollars,  offering  to  give,  in  addition  to  his  notes,  a  bill  of 
sale,  or  a  mortgage  of  his  interest  in  the  brig  Nereus,  then  at  sea. 


Chap.  VII]  Hunt  vs.  Kousmanies.  323 

as  collateral  security  for  the  repayment  of  the  money.  The  sum 
requested  was  lent;  and,  on  the  11th  of  January,  the  said  Rous- 
manier  executed  two  notes  for  the  amount;  and,  on  the  15th  of 
the  same  month,  he  executed  a  power  of  attorney,  authorizing  the 
plaintiff  to  make  and  execute  a  bill  of  sale  of  three-fourths  of  the 
said  vessel  to  himself,  or  to  any  other  person;  and,  in  the  event  of 
the  said  vessel  or  her  freight  being  lost,  to  collect  the  money  which 
should  become  due  on  a  policy  by  which  the  vessel  and  freight  were 
insured.  This  instrument  contained,  also,  a  proviso,  reciting  that 
the  power  was  given  for  the  collateral  security  for  the  payment  of 
the  notes  already  mentioned,  and  was  to  be  void  on  their  payment; 
on  the  failure  to  do  which,  the  plaintiff  was  to  pay  the  amount 
thereof,  and  all  the  expenses,  out  of  the  proceeds  of  the  property, 
and  to  return  the  residue  to  the  said  Rousmanier. 

The  bill  farther  stated,  that  on  the  21st  of  March,  1820,  the 
plaintiff  lent  to  the  said  Rousmanier  the  additional  sum  of  seven 
hundred  dollars,  taking  his  note  for  payment,  and  a  similar  power 
to  dispose  of  his  interest  in  the  schooner  Industry,  then  at  sea. 
The  bill  then  charged,  that  on  the  6th  of  May,  1820,  the  said 
Rousmanier  died  insolvent,  having  paid  only  two  hundred  dollars  on 
the  said  notes.  The  plaintiff  gave  notice  of  his  claim,  and,  on  the 
return  of  the  Nereus  and  Industry,  took  possession  of  them,  and 
offered  the  interest  in  them  for  sale.  The  defendants  forbade  the 
sale,  and  this  bill  was  brought  to  compel  them  to  join  in  it. 

The  defendants  demurred  generally,  and  the  court  sustained  the 
demurrer,  but  gave  the  plaintiff  leave  to  amend  his  bill. 

The  amended  bill  stated,  that  it  was  expressly  agreed  between 
the  parties,  that  Rousmanier  was  to  give  specific  security  on  the 
Nereus  and  Industry,  and  that  he  offered  to  execute  a  mortgage 
on  them.  That  counsel  was  consulted  on  the  subject,  who  advised 
that  a  power  of  attorney,  such  as  was  actually  executed,  should  be 
taken  in  preference  to  a  mortgage,  because  it  was  equally  valid 
and  effectual  as  a  security,  and  would  prevent  the  necessity  of 
changing  the  papers  of  the  vessels,  or  of  taking  possession  of  them 
on  their  arrival  in  port.  The  powers  were  accordingly  executed, 
with  the  full  belief  that  they  would,  and  with  the  intention  that 
they  should,  give  the  plaintiff  as  full  and  perfect  security  as  would 
be  given  by  a  deed  of  mortgage.  The  bill  prayed  that  the  defend- 
ants might  be  decreed  to  join  in  a  sale  of  the  interest  of  their 
intestate  in  the  Nereus  and  Industry,  or  to  sell  the  same  them- 
selves, and  pay  out  of  the  proceeds  the  debt  due  to  the  plaintiff. 


324  Cases  ox  Age>:ct.  [Book  I 

To  this  amended  bill,  also,  the  defendants  demnrred,  and  on  argn- 
ment  the  demurrer  was  sustained,  and  the  bill  dismissed.  From 
the  decree,  the  plainti^  appealed  to  this  court. 

Mr.  Wheaton,  for  the  appellant. 
Mr.  Hunter,  for  the  defendants. 

Mr.  Chief  Justice  Marshall  delivered  the  opinion  of  the  court. 
The  counsel  for  the  appellant  objects  to  the  decree  of  the  circuit 
court  on  two  grouds.     He  contends: 

1.  That  this  power  of  attorney  does,  by  its  own  operation, 
entitle  the  plaintiff,  for  the  satisfaction  of  his  debt,  to  the  interest 
of  Rousmanier  in  the  Nereas  and  the  Industry. 

2.  Or,  if  this  be  not  so,  that  a  court  of  chancery  will,  the  con- 
veyance being  defective,  lend  its  aid  to  carry  the  contract  into 
execution,  according  to  the  intention  of  the  parties. 

We  will  consider,  1.     The  effect  of  the  power  of  attorney. 

This  instrument  contains  no  words  of  conveyance  or  of  assign- 
ment, but  is  a  simple  power  to  sell  and  convey.  As  the  power  of 
one  man  to  act  for  another,  depends  on  the  will  and  license  of  that 
other,  the  power  ceases  when  the  will,  or  this  permission,  is  with- 
drawn. The  general  rule,  therefore,  is,  that  a  letter  of  attorney 
may,  at  any  time,  be  revoked  by  the  party  who  makes  it;  and  is 
revoked  by  his  death.  But  this  general  rule,  which  results  from 
the  nature  of  the  act,  has  sustained  some  modifications.  Where  a 
letter  of  attorney  forms  a  part  of  a  contract,  and  is  a  security  for 
money,  or  for  the  performance  of  any  act  which  is  deemed  valuable, 
it  is  generally  made  irrevocable  in  terms,  or  if  not  so,  is  deemed 
irrevocable  in  law;  2  Esp.  N.  P.  Eep.  5G5.  Although  a  letter  of 
attorney  depends,  from  its  nature,  on  the  will  of  the  person  making 
It,  and  may,  in  general,  be  recalled  at  his  will;  yet,  if  he  binds  him- 
self for  a  consideration,  in  terms,  or  by  the  nature  of  his  contract, 
not  to  change  his  will,  the  law  will  not  permit  him  to  change  it. 
Kousmanier,  therefore,  could  not,  during  his  life,  by  any  act  of  his 
own,  have  revoked  this  letter  of  attorney.  But  does  it  retain  its 
efficacy  after  his  death?  We  think  it  does  not.  We  think  it  well 
settled,  that  a  power  of  attorney,  though  irrevocable  during  the 
life  of  the  party,  becomes  extinct  by  his  death. 

This  principle  is  asserted  in  Littleton  (sec.  60),  by  Lord  Coke, 
in  his  commentary  on  that  section  (525.),  and  in  Willes'  Keporta 
(105  note  and  565).  The  legal  reason  of  the  rule  is  a  plain  one. 
It  seems  founded  on  the  presumption  that  the  substitute  acts  by 


Cliap.  VII]  Hunt  vs.  Rousmakieb.  325 

virtue  of  the  authority  of  his  principal,  existing  at  the  time  the 
act  is  performed;  and  on  the  manner  in  which  he  must  execute  his 
authority,  as  stated  in  Comie's  case,  9  Co.  7C6.  In  that  case  it  was 
resolved  that  ''when  any  has  authority  as  attorney  to  do  any  act, 
he  ought  to  do  it  in  his  name  who  gave  the  authority/'  The 
reason  of  this  resolution  is  ohvious.  The  title  can,  regularly,  pass 
out  of  the  person  in  whom  it  is  vested  only  by  a  conveyance  in  his 
own  name;  and  this  cannot  be  executed  by  another  for  him,  when 
it  could  not,  in  law,  be  executed  by  himself.  A  conveyance  in  the 
name  of  a  person  who  was  dead  at  the  time,  would  be  a  manifest 
absurdity. 

This  general  doctrine,  that  a  power  must  be  executed  in  the 
name  of  a  person  who  gives  it,  a  doctrine  founded  on  the  nature  of 
the  transaction,  is  most  usually  engrafted  in  the  power  itself.  Its 
usual  language  is,  that  the  substitute  shall  do  that  which  he  is 
empowered  to  do  in  the  name  of  his  principal.  He  is  put  in  the 
place  and  stead  of  his  principal,  and  is  to  act  in  his  name.  This 
accustomed  form  is  observed  in  the  instrument  under  considera- 
tion. Hunt  is  constituted  the  attorney,  and  is  authorized  to  make 
and  execute,  a  regular  bill  of  sale  in  the  name  of  Eousmanier. 
Now,  as  an  authority  must  be  pursued,  in  order  to  make  the  act 
of  the  substitute  the  act  of  the  principal,  it  is  necessary  that  this 
bill  of  sale  should  be  in  the  name  of  Eousmanier;  and  it  would  be 
a  gross  absurdity  that  a  deed  should  purport  to  be  executed  by 
him,  even  by  attorney,  after  his  death;  for  the  attorney  is  in  the 
place  of  the  principal,  capable  of  doing  that  alone  which  the 
principal  might  do. 

This  general  rule,  that  a  power  ceases  with  the  life  of  the  person 
giving  it,  admits  of  one  exception.  If  a  power  be  coupled  with  an 
**  interest,"  it  survives  the  person  giving  it,  and  may  be  executed 
after  his  death. 

As  this  proposition  is  laid  down  too  positively  in  the  books  to  be 
controverted,  it  becomes  necessary  to  inquire  what  is  meant  by  the 
expression,  "a  power  coupled  with  an  interest?  '*  Is  it  an  interest  in 
the  subject  on  which  the  power  is  to  be  exercised,  or  is  it  an  interest 
in  that  which  is  produced  by  the  exercise  of  the  power?  We  hold 
it  to  be  clear,  that  the  interest  which  can  protect  a  power  after  the 
death  of  a  person  who  creates  it,  must  be  an  interest  in  the  thing 
itself.  In  other  words,  the  power  must  be  engrafted  on  an  estate 
in  the  thing. 

The  words  themselves  would  seem  to  import  this  meaning.     "  A 


326  Cases  on  Agency.  [Book  I 

power  coupled  with  an  interest/'  is  a  power  which  accompanies,  or  is 
connected  with  an  interest.  The  power  and  the  interest  are  united  in 
the  same  person.  But  if  we  are  to  understand  by  the  word  "  inter- 
est/' an  interest  in  that  which  is  to  be  produced  by  the  exercise  of 
the  power,  then  they  are  never  united.  The  power,  to  produce  the 
interest,  must  be  exercised,  and  by  its  exercise,  is  extinguished. 
The  power  ceases  when  the  interest  commences,  and,  therefore, 
cannot,  in  accurate  law  language,  be  said  to  be  "  coupled  "  with  it. 

But  the  substantial  basis  of  the  opinion  of  the  court  on  this 
point,  is  found  in  the  legal  reason  of  the  principle.  The  interest 
or  title  in  the  thing  being  Tested  in  the  person  who  gives  the  power, 
remains  in  him,  unless  it  be  conveyed  with  the  power,  and  can  pass 
out  of  him  only  by  a  regular  act  in  his  own  name.  The  act  of  the 
substitute,  therefore,  which,  in  such  a  case,  is  the  act  of  the  prin- 
cipal, to  be  legally  effectual,  must  be  in  his  name,  must  be  such  an 
act  as  the  principal  himself  would  be  capable  of  performing,  and 
which  would  be  valid  if  performed  by  him.  Such  a  power  neces- 
sarily ceases  with  the  life  of  the  person  making  it.  But  if  the 
interest  or  estate  passes  with  the  power,  and  vests  in  the  person  by 
whom  the  power  is  to  be  exercised,  such  person  acts  in  his  own 
name.  The  estate  being  in  him,  passes  from  him  by  a  conveyance 
in  his  own  name.  He  is  no  longer  a  substitute,  acting  in  the  place 
and  name  of  another,  but  is  a  principal  acting  in  his  own  name,  in 
pursuance  of  powers  which  limit  his  estate.  The  legal  reason 
which  limits  a  power  to  the  life  of  the  person  giving  it,  exists  no 
longer,  and  the  rule  ceases  with  the  reason  on  which  it  is  founded. 
The  intention  of  the  instrument  may  be  effected  without  violating 
any  legal  principle. 

This  idea  may  be  in  some  degree  illustrated  by  examples  of  cases 
in  which  the  law  is  clear,  and  which  are  incompatible  with  any 
other  exposition  of  the  term  *'power  coupled  with  an  interest."  If 
the  word  "  interest "  thus  used,  indicated  a  title  to  the  proceeds  of 
the  sale,  and  not  a  title  to  the  thing  to  be  sold,  then  a  power  to  A. 
to  sell  for  his  own  benefit,  would  be  a  power  coupled  with  an  interest; 
but  a  power  to  A.  to  sell  for  the  benefit  of  B.,  would  be  a  naked 
power,  which  could  be  executed  only  in  the  life  of  the  person  who 
gave  it.  Yet,  for  this  distinction,  no  legal  reason  can  be  assigned. 
Kor  is  there  any  reason  for  it  in  justice;  for,  a  power  to  A.  to  sell 
for  the  benefit  of  B.,  may  be  as  much  a  part  of  the  contract  on 
which  B.  advances  his  money,  as  if  the  power  had  been  made  to 
himself.     If  this  were  the  true  exposition  of  the  term,  then  a  power 


Chap.  VII]  Hunt  vs.  Eousmanier,  327 

to  A.  to  sell  for  the  use  of  B.,  inserted  in  a  converance  to  A,  of 
the  thing  to  be  sold,  ■n-ould  not  be  a  power  coupled  with  an  interest, 
and,  consequently,  could  not  be  exercised  after  the  death  of  the 
person  making  it;  while  a  power  to  A.  to  sell  and  pay  a  debt  to 
himself,  though  not  accompanied  with  any  conveyance  which  might 
vest  the  title  in  him,  would  enable  him  to  make  the  conveyance 
and  to  pass  a  title  not  in  him,  even  after  the  vivifying  principle  of 
the  power  had  become  extinct.  But  every  day's  experience  teaches 
us  that  the  law  is  not  as  the  first  case  put  would  suppose.  We 
know  that  a  power  to  A.  to  sell  for  the  benefit  of  B.,  engrafted  on 
an  estate  conveyed  to  A.,  may  be  exercised  at  any  time,  and  is  not 
affected  by  the  death  of  the  person  who  created  it.  It  is,  then,  a 
power  coupled  with  an  interest,  although  the  person  to  whom  it  is 
given  has  no  interest  in  its  exercise.  His  power  is  coupled  with  an 
interest  in  the  thing  which  enables  him  to  execute  it  in  his  own 
name,  and  is,  therefore,  not  dependent  on  the  life  of  the  person 
who  created  it. 

The  general  rule,  that  a  power  of  attorney,  though  irrevocable 
by  the  party  during  his  life,  is  extinguished  by  his  death,  is  not 
affected  by  the  circumstance,  that  testamentary  powers  are  exe- 
cuted after  the  death  of  the  testator.  The  law,  in  allowing  a  testa- 
mentary disposition  of  property,  not  only  permits  a  will  to  be  con- 
sidered as  a  conveyance,  but  gives  it  an  operation  which  is  not 
allowed  to  deeds  which  have  their  effect  during  the  life  of  the 
person  who  executes  them.  An  estate  given  by  will  may  take  effect 
at  a  future  time  or  on  a  future  contingency,  and,  in  the  mean  time 
decends  to  the  heir.  The  power  is,  necessarily,  to  be  executed 
after  the  death  of  the  person  who  makes  it,  and  cannot  exist  dur- 
ing his  life.  It  is  the  intention  that  it  shall  be  executed  after  his 
death.  The  conveyance  made  by  the  person  to  whom  it  is  given, 
takes  effect  by  virtue  of  the  will,  and  the  purchaser  holds  his  title 
under  it.  Every  case  of  a  power  given  in  a  will,  is  considered  in  a 
court  of  chancery  as  a  trust  for  the  benefit  of  the  person  for  whose 
use  the  power  is  made,  and  as  a  devise  or  bequest  to  that  person. 

It  is,  then,  deemed  perfectly  clear,  that  the  power  given  in  this 
case,  is  a  naked  power,  not  coupled  with  an  interest,  which,  though 
irrevocable  by  Kousmanier  himself,  expired  on  his  death.      ♦     •     ♦ 

Keversed  on  other  grounds. 

Note — The  death  of  a  partner  dissolves  the  firm  and  with  it  terminates 
agencies  in  which  the  iirni  w  as  principal.  Such  a  termination  is  aetut 
Dei,  and  the  agent  cannot  recover  damages  though  employed  for  a  term 


328  Cases  on  Agency.  [  Book  I 

not  yet  expired:  Griggs  vs.  Swift,  82  Ga.  392,  5  L.  R.  A.  405.  So  of  the 
death  of  a  sole  principal:  Yerrington  vs.  Greene,  7  R.  I.  589,  84  Am.  Dec. 
678.  See,  also,  Tasker  vs.  Shepherd,  6  H.  &  N.  575;  Fereira  vs.  Sayrea, 
6  Watts  &  S.  (Pa.)  210,  40  Am.  Deo.  496. 


(10  Paige,  Ch.  205,  40  Am.  Dec.  241.) 

KNAPP  vs.  ALVORD. 
("New  York  Court  of  Chancery,  April,  1S4S.J 

Exceptions  to  master's  report,  stating  the  account  of  the  defend- 
ant as  administratrix  of  Alvord,  deceased,  filed  by  certain  credit- 
ors of  the  estate.  The  estate  was  insufficient  to  pay  all  the  debts, 
and  the  master  allowed  the  administratix,  for  a  certain  sum, 
retained  by  one  Meads  out  of  the  proceeds  of  the  property  of  the 
estate  sold  by  him,  to  cover  two  notes  on  which  he  was  indorser 
for  the  deceased.  It  appeared  that  the  deceased,  who  was  a  cab- 
inetmaker, wishing  to  go  abroad  for  his  health,  gave  Meads,  who 
was  his  indorser  on  his  note  to  one  Eector,  the  general  manage- 
ment of  his  business,  and  entire  possession  and  control  of  his 
property,  with  a  written  power  of  attorney,  authorizing  him  to 
conduct  the  business,  to  purchase  stock,  to  hire  hands,  and  to  col- 
lect moneys  and  apply  the  same  in  the  business  and  to  the  support 
of  the  principal's  family,  etc. ;  and  expressly  empowering  him  to 
sell  and  dispose  of  any  or  all  of  the  property  *'  at  any  time  or  in 
any  manner  "  which  he  might  deem  advisable,  and  apply  the  pro- 
ceeds, in  whole  or  in  part,  to  the  payment  or  security  of  a  certain 
note  indorsed  by  Whitney  and  Van  Vechten,  or  any  note  given  in 
renewal  thereof,  and  to  the  payment  or  security  of  and  of  his  note 
indorsed  by  Meads,  or  for  which  Meads  might  become  responsible. 
He  also  left  with  him  certain  notes  signed  in  blank,  to  be  used  in 
renewal  of  notes.  He  gave  Whitney  also  a  mortgage  on  the  fur- 
niture, stock,  etc.,  of  his  cabinet  shop,  to  secure  the  note  on 
which  he  was  indorser,  but  the  same  was  not  recorded  until  after 
Alvord's  death. 

Before  Alvord's  death,  Meads  renewed  the  Whitney  and  Van 
Vechten  note  with  one  of  the  blanks  in  his  hands,  they  again 
indorsing,  and  also  renewed  the  Hector  note,  putting  his  own  name 
as  indorser  on  both  notes,  and  they  being  protested  for  non- 


Chap.  VII  ]  Knapp  vs.  Alvoed.  329 

payment  after  Alvord's  death,  he  took  them  both  np.  He  claimed 
a  lien  to  reimburse  him  for  the  moneys  so  paid,  on  the  property  in 
his  hands,  of  which  he  kept  possession,  and  continued  to  manage 
the  business,  with  the  consent  of  the  administratrix,  nntil  1838, 
when,  with  the  like  assent,  he  sold  the  property  at  auction,  and 
retaining  enough  to  reimburse  himself,  paid  the  proceeds  to  the 
defendant. 

Ira  Harris,  for  the  excepting  creditors. 
S.  Stevens  and  0.  Meads,  for  the  defendant. 

Walwoeth,  Chnncellor.  The  personal  mortgage  to  Whitney 
not  being  filed  till  after  the  death  of  Alvord,  and  not  being 
accompanied  by  an  immediate  delivery  and  continued  possession  of 
the  property  it  may  be  doubtful  whether  it  was  sufficient  to  give 
Whitney,  who  was  liable  to  Meads  as  the  last  indorser  of  the  note 
of  one  thousand  eight  hundred  dollars,  a  preference  in  payment 
over  the  other  creditors  of  Alvord.  This  case,  however,  does  not 
turn  upon  that  question;  as  I  am  satisfied  that  an  equitable  lien 
upon  the  property  was  created  by  the  special  clause  in  the  power, 
in  reference  to  the  one  thousand  eight  hundred  dollar  note,  and  to 
notes  drawn  by  Alvord  and  indorsed  by  Meads.  And  as  that 
instrument  was  accompanied  by  an  actual  delivery  and  continued 
change  of  possession  of  the  property,  nntil  it  was  converted  into 
money  and  applied  in  payment  of  the  two  several  notes,  it  was  not 
necessary  that  the  instrument  which  created  that  lien  should  be 
recorded,  nnder  the  act  of  1833. 

It  is  the  duty  of  the  court  to  give  snch  a  construction  to  the 
language  of  a  written  instrument  as  to  carry  into  effect  the  inten- 
tion of  the  parties,  so  far  as  that  intention  can  be  collected  from 
the  whole  instrument  and  the  situation  of  the  parties  at  the  time 
the  writing  was  executed.  And  I  think  no  one  who  reads  this 
special  clanse  in  connection  with  the  evidence,  or  rather  the  admis- 
sions, of  extrinsic  facts  which  are  proper  to  be  taken  into  con- 
sideration, can  believe  that  Alvord  did  not  intend  to  give  the 
indorsers  of  the  one  thousand  eight  hundred  dollar  note,  and  to 
Meads,  as  the  indorser  of  the  Rector  note,  and  other  notes  which  he 
might  thereafter  indorse,  a  beneficial  interest  in  the  execution  of 
this  power,  for  their  security  and  indemnity.  It  clearly  shows  that 
Alvord  anticipated  that  it  wonld  probably  be  necessary  for  Meads 
to  incur  further  responsibility,  as  his  indorser,  in  the  discharge  of 


330  Cases  o:^T  Agency.  [Book  I 

the  duties  of  his  agency,  and  that  something  more  than  an  ordinary 
power  of  attorney  was  necessary  to  protect  him  from  loss.     And  as 
the  possession  of  the  property  was  delivered  to  Meads,  in  connection 
with  this  power  to  dispose  of  it  for  the  security  and  protection  of 
himself  and  the  other  indorsers,  the  property  must  be  considered  as 
pledged  to  him  for  that  purpose.     The  power  to  sell,  therefore,  was 
coupled  with  an  interest  in  the  property  thus  pledged,  and  survived. 
Bergen  vs.  Bennett,  1  Cai.  Cas.  in  Err.,  (2  Am.   Dec.  281);  Eay- 
mond  vs.   Squire,  11  Johns.  47.      In  the   case  decided   by  the 
supreme  court  of  the  United   States,  Hunt  vs.   Rousmaiiier^   8 
"Wheat.  174,  {post,  p. 322)  there  was  no  actual  pledge  of  the  property. 
But   a    mere  power  of  attorney   was    executed,  authorizing  the 
plaintiff  to  transfer  it  in  the  name  of  Eousmanier.     It  was  upon 
that  ground,  as  I  understand  the  case,  that  Chief  Justice  Mae- 
BHALL  held  that  the  power  was  not  coupled  with  any  interest  in 
the  vessels.     And  I  presume  his  opinion  on  that  point  would  have 
been  different  if  the  power  had  been  accompanied  by  an  actual 
delivery  of  the  vessels  as  a  pledge  for  the  payment  of  the  debt. 
But  even  in  that  case  the  court  protected  the  rights  of  Hunt  as  an 
equitable  mortgagee  of  the  vessels;  though  the  decision  was  placed 
on  the  debatable  ground  that  a  party  may  be  relieved  in  equity 
against  a  mistake  of  law  merely. 

Being  satisfied  that  Meads  had  a  lien  upon  the  property  in  hia 
hands,  and  a  right  to  retain  for  the  amount  of  these  notes,  under 
the  special  clause  in  the  written  power  execnted  by  Alvord,  it  is 
not  necessary  to  inquire  whether  he  is  not  also  to  be  considered  as 
the  factor  of  Alvord;  so  as  to  entitle  him  to  retain  for  his  advances 
and  liabilities,  entirely  independent  of  this  special  provision  in  the 
power  of  attorney  to  him.  If  the  arrangement  between  Alvord 
and  Meads  gave  to  the  latter  the  character  of  a  factor,  there  can  be 
BO  doubt  as  to  his  lien  upon  the  property  in  his  hands,  and  his 
right  to  retain  for  all  his  advances  and  responsibilities  in  the  busi- 
ness with  which  he  was  intrusted  by  his  principal.  Although  it 
was  doubted,  previous  to  the  case  of  Kruger  vs.  Wilcox,  Amb.  252, 
it  is  now  well  settled  that  a  factor  has  a  lien  and  may  retain  for  a 
general  balance,  including  responsibilities  incurred  in  the  execu- 
tion of  his  agency.  Whit,  on  Lien,  103;  2  Kent's  Com.  640; 
Story  on  Agency,  34,  sec.  34.  And  the  case  of  Foxcraft  vs.  Wood, 
4  Buss.  487,  was  probably  decided  upon  the  ground  that  the 
arrangement  nnder  which  the  business  at  Birmingham  was  carried 


Chap.  VII  ]  Knapp  vs.  Alvord.  331 

on  constitnted  Foxcraft  the  factor  of  Lanning,  although  he 
received  a  fixed  salary  instead  of  the  usual  mercantile  commissions 
for  his  services. 

The  decision  of  the  master  was  right  in  allowing  to  the  adminis- 
tratrix the  amount  retained  hy  Meads  for  the  two  notes.  The 
exceptions  are  therefore  overruled  with  costs,  and  the  report  of  the 
master  is  confirmed. 


(113  New  York,  600.) 

WEBEE  vs.  BRIDGMAK 

fNew  York  Court  of  Appeals,  June,  1889.  J 

Appeal  from  an  order  reversing  a  judgment  in  favor  of  the 
plaintiff. 

In  1871,  Weher  executed  to  Hartwig  a  power  of  attorney,  author- 
izing him,  among  other  things,  to  collect  and  receive  moneys 
becoming  due  from  any  person  to  his  principal,  and  to  execute  dis- 
charges thereof,  etc.  Hartwig  purchased  a  bond  and  mortgage, 
receiving  an  assignment  thereof  to  Weber,  and  as  agent  collected 
the  interest  thereon  as  it  fell  due,  receipting  therefor  in  the  name 
of  Weber.  The  latter  died  in  Germany  in  January,  1874.  The 
bond  fell  due  in  May  of  that  year  and  was  paid  by  Bridgman,  the 
then  owner  of  the  mortgaged  premises,  to  Hartwig,  who  executed 
a  satisfaction  of  the  mortgage  and  delivered  to  the  payor  the  bond 
and  mortgage,  the  assignment  and  the  power  of  attorney.  Hart- 
wig knew  at  the  time  of  the  death  of  Weber,  but  he  did  not  dis- 
close the  fact  to  Bridgman,  and  the  latter  made  no  inquiries.  In 
an  action  brought  in  1885  to  foreclose  the  mortgage,  the  court 
found  that  Hartwig  never  accounted  to  plaintiff,  the  widow  and 
administratrix  of  Weber,  for  the  bond  and  mortgage  or  the  proceeds, 
and  that  plaintiff  never  assented  to  or  ratified  the  payment,  and  did 
not  know  of  the  existence  of  the  bond  and  mortgage  or  the  cancel- 
lation thereof  until  within  a  short  time  of  the  commencement  of 
the  action. 

Alex.  S.  Bacon,  for  appellant. 

Thomas  H.  Rodman,  for  respondents. 

Danfoeth,  J.     It  should  be  assumed,  without  argument,  that 


332  Cases  on  Agency.  [Book  1 

the  plaintiff  is  not  bonnd  by  the  act  of  Hart^ig,  nnless  his  author- 
ity to  receive  the  money  and  discharge  the  mortgage  was  established, 
or  unless  she  has,  with  knowledge  of  the  facts,  recognized  that  trans- 
action and  adopted  it.  The  respondents'  contention  is  that  both 
alternatives  are  established,  viz. :  That  the  payment  to  Hartv.ig  was 
a  valid  payment,  and  also  that  Hartwig  accounted  with  the  plaintiff 
and  paid  over  to  her  the  money  so  received  by  him.  As  Bridgman 
dealt  with  Hartwig  as  an  agent,  and  now  seeks  to  charge  the  rep- 
resentatives of  TTeber  as  if  his  dealings  had  been  with  the  principal, 
the  burden  of  proof  was  on  him  to  show  either  that  the  agency 
existed,  and  that  the  agent  with  whom  he  dealt  had  the  authority 
he  assumed  to  exercise  or  that  the  plaintiff  is  estopped  from  disput- 
ing it.  That  an  agency  of  some  kind  did  at  one  time  exist  in  favor 
of  Hartwig  was  sufficiently  manifest  by  the  power  of  attorney  and 
proof  of  its  due  execution  and  delivery  by  "Weber.  If  it  be  con- 
ceded that  the  act  in  question  was  within  the  authority  which 
Hartwig  once  had,  it  would  not  aid  the  defendant,  for  that  author- 
ity was  determined  by  the  death  of  Weber  before  the  act  was 
performed,  and  although  Bridgcman  had  no  notice  of  his  death 
the  act  was  void  and  the  estate  of  the  principal  is  not  bound. 

The  question  is  not  new,  and  it  has  been  uniformly  answered  by 
our  decisions  to  the  effect  that  the  death  of  the  principal  puts  an 
end  to  the  agency,  and,  therefore,  is  an  instantaneous  and  unqual- 
fied  revocation  of  the  authority  of  the  agent.  2  Kent's  Com. 
646;  Hunt  vs.  Eonsmamer,  8  Wheat.  174,  {post,  p.  322). 

There  can  be  no  agent  where  there  is  no  principal.  There  are,  no 
doubt,  exceptions  to  the  rule,  as  where  an  agency  is  coupled  with 
an  interest  (Knapp  vs.  Alvord,  10  Pai.  205,  40  Am.  Dec.  241  {ante, 
p.  d28 ;  Hunt  vs.  Rousmanier,  supra;  Hess  vs.  Rau,  95  N.  Y.  359); 
or  where  the  principal  was  a  firm  and  only  one  of  its  members  died. 
Banh  vs.  Vanderliorst,  32  N.  Y.  553.  But  both  cases  recognize 
the  general  rule  to  be  as  above  stated.  In  Davis  vs.  Windsor  Sav- 
ings Banh  (46  Vt.  728),  the  rule  was  applied.  The  defendant  paid 
money  to  the  agent  after  the  death  of  his  principal,  but  in  ignorance 
of  it,  and  the  administrator  of  the  deceased  recovered.  It  is  quite 
unnecessary  to  go  through  the  cases  on  this  subject.  The  rule  at 
common  law  which  determines  the  authority  of  an  agent  by  the 
death  of  his  principal  is  well  settled,  and  no  notice  is  necessary  to 
relieve  the  estate  of  the  principal  of  responsibility,  even  on  con- 
tracts into  which  the  agent  had  entered  with  third  persons  who 
were  ignoract  of  his  death.     Those  who  deal  with  an  agent  are  held 


Chap.  VII]  Weber  vs.  Bridgman.  333 

to  assume  the  risk  that  his  authority  may  he  terminated  hy  death 
without  notice  to  them.  This  rule  was  established  in  England 
(Leake  on  Con.  487),  although  now  modified  by  statute,  and  is 
generally  applied  in  this  country.  Story  on  Agency,  sec.  488;  Pars. 
on  Con.  vol.  1,  p.  71;  2  Kent's  Com.  (12th  ed.)     645,  646. 

In  fome  states  alterations  have  been  made  by  statute;  and,  fol- 
lowing the  civil  law,  it  was  held  in  Pennsylvania  {Cassidy  vs. 
M'Eenzie,  4  Watts  &  Serg.  282,  39  Am.  Dec.  76,)  that  the  act  of 
an  attorney,  done  after  the  death  of  his  principal,  of  which  he  was 
ignorant,  are  binding  upon  the  parties.  This  was,  however,  in 
opposition  to  the  current  of  authority.  1  Pars,  on  Con.  71;  2 
Kent's  Com.  646. 

But  even  that  case  does  not  aid  the  defendant,  for  here  the  agent 
knew  of  the  death  of  his  principal.  Moreover,  the  defendant 
might  have  known  it  had  he  taken  the  precaution  to  inquire.  He 
had  never  before  dealt  with  the  agent.  The  power  of  attorney 
was  not  of  recent  date,  and  the  defendant  should  be  held  to  have 
assumed  the  burden  of  showing  that  Hartwig  was,  at  the  moment 
of  the  transaction,  a  person  authorized  to  act  so  as  to  bind  the  real 
owner  of  the  bond  and  mortgage,  whoever  that  person  might  prove 
to  he.  There  is  no  equity  in  his  favor,  for  the  loss,  if  any,  is  from 
his  own  negligence. 

It  is  claimed,  however,  by  the  learned  counsel  for  the  respond- 
ents, that  the  rule  has  application  only  where  the  act  of  the  agent 
is  required  to  be  done  in  the  name  of  the  principal,  and  his  con- 
tention is,  as  we  understand  it,  that,  inasmuch  as  Hartwig  had 
possession  of  the  bond  and  mortgage,  the  defendant  from  that  fact 
had  a  right  to  infer  an  agency  to  collect,  and  so  the  payment  was 
valid.  However  that  might  he  under  other  circumstances,  the 
contention  has  no  force  in  this  instance.  The  power  of  Hartwig 
was  not  left  to  inference.  Whatever  it  was  it  came  before  the 
defendant  in  writing.  The  power  of  attorney  was  in  his  hands. 
It  authorized  such  acts  only  as  could  be  performed  in  the  name  of 
the  principal,  and  so  the  defendant  understood  it.  He  caused  the 
power  to  be  recorded,  took  a  discharge  of  the  mortgage  under  it 
executed  by  Hartwig  as  agent  for  Weber,  and  gave  the  check  payable 
to  the  order  of  Hartwig  in  that  character.  Except  for  the  power 
of  attorney  and  its  recital,  and  the  acts  of  Hartwig  under  it,  the 
defendant  would  not  have  even  the  shadow  of  a  defense.  In  his 
own  name  Hartwig  could  do  nothing,  and  of  this  the  defendant 
had  full   notice.      The  power  of    attorney  which    accompanied 


334 


Cases  on  Agency.  [Book  I 


possession  of  the  secnrities  defined  the  actnal  anthority,  and  the 
defendant  had  notice  of  its  contents  at  the  same  moment  that  he 
saw  the  hond  and  mortgage  in  the  hands  of  the  attorney.  The 
authority  which  might  be  gathered  from  their  mere  possession  is, 
nnder  these  circumstances,  of  no  force.  The  giving  of  an  author- 
ity in  writing  imports  that  the  extent  of  the  authority  is  to  be 
looked  for  in  its  terms,  and  not  elsewhere. 

But  a  more  difiBcult  question  remains,  one  on  which  the  courts 
below  differed,  and  in  consequence  of  which  difference  we  have 
jurisdiction  to  pass  upon  it.  Code,  §§  1337, 1338.  It  is  a  question 
of  fact  whether,  with  knowledge  of  the  circumstances,  the  plaintiff 
ratified  the  payment.  *  *  •  (The  omitted  portion  of  the 
opinion  discusses  the  evidence  as  to  knowledge  and  ratification  ol 
payment  by  plaintiff;  the  court  coming  to  the  conclusion  that  it 
failed  to  show  such  knowledge  or  ratification.) 

It  is  true  that  between  the  time  of  payment  and  the  beginning  oi 
this  suit,  many  years  elapsed,  but  the  fact  of  payment  was  unknown 
to  plaintiff.  It  is  also  true  that  she  failed,  before  this  action  and 
during  all  these  years,  to  demand  either  principal  or  interest  from 
the  defendant,  but  she  was  altogether  ignorant  that  the  security 
existed,  by  means  of  which  either  had  become  due.  To  show  the 
contrary  was  the  duty  of  the  defendant,  if  the  truth  enabled  him 
to  do  so.  The  trial  judge  found  that  he  had  failed  in 
this  respect,  and  we  have  no  hesitation  in  saying  that  a  different 
finding  would  not  have  been  justified  by  the  testimony.  The  con- 
clusion actually  reached  was  the  only  one  permitted  by  the  evidence. 
The  appeal  necessarily  succeeds.  Sherwood  vs.  Hauser,  94  N.  Y., 
626;  Baird  vs.  Mayor,  etc.,  96  Id.,  567;  Crane  vs.  Baudouine,  65 
Id.,  256;  Westerlo  vs.  DeWitt,  96  Id.,  340. 

The  order  of  the  general  term  should,  therefore,  be  reversed,  and 
the  judgment  of  the  special  term  affirmed,  with  costs. 


Chap.  VII  ]     Refining  Co.  vs.  McMahon's  Admb.  335 


(38  New  Jersey  Law,  536.) 

MATTHIESSEN   &  WEICHERS    REFINING   COMPANY 
vs.  McMAHON'S  ADMR. 

( Court  of  Errors  and  Appeals  of  New  Jersey,  March,  1876 J 

Action  of  trover  by  the  administrator  of  McMahon  to  recover 
from  the  Refining  Company  the  value  of  goods  alleged  to  have 
been  sold  by  McMahon  to  the  company  while  he  was  insane.  The 
goods  were  delivered  by  one  Shindly  as  agent  of  McMahon. 

B,  Qilchrist,  for  plaintiffs  in  error. 
J,  Limit  contra, 

Depue,  J.  •  •  •  Notwithstanding  the  declaration  of 
Chancellor  Kent  (2  Kent,  645)  "  that  the  better  opinion  wonld 
seem  to  be  that  the  fact  of  the  existence  of  the  lunacy  must  have 
been  previously  established  by  inquisition  before  it  could  control 
the  operation  of  the  power,*'  the  weight  of  authority,  as  well  as 
Bound  reasoning,  lead  to  the  conclusion  that  the  after-occurring 
insanity  of  the  principal  operates,  per  se,  as  a  revocation  or  sus- 
pension of  the  agency,  except  in  cases  where  a  consideration  haa 
previously  been  advanced  in  the  transaction  which  was  the  subject- 
matter  of  the  agency,  so  that  the  power  became  coupled  with  an 
interest;  or  where  a  consideration  of  value  is  given  by  a  third  per- 
son, trusting  to  an  apparent  authority  in  ignorance  of  the  princi- 
pal's incapacity.  Story  on  Agency,  §  481;  Bunce  vs.  Gallagher, 
5  Blatch.  C.  C.  481;  Davis  vs.  Lane,  10  New  ELarnp.  156. 

Justice  Stoet  states  the  principle  to  be  that  "  as  the  party  him- 
self, during  his  insanity,  could  not  personally  do  a  valid  act,  his 
agent  cannot,  in  virtue  of  a  derivative  authority,  do  an  act  for  and 
in  his  name  which  he  could  not  lawfully  do  for  himself."  From 
this  principle  the  conclusion  inevitably  results,  that  transactions 
of  third  parties,  which,  under  the  circumstances,  would  be  invalid 
if  had  directly  with  the  principal,  must  be  equally  invalid  though 
they  be  done  with  the  agent.  Saving  the  rights  of  persons  who, 
before  the  insanity  intervened,  became  interested  in  the  power  by 
reason  of  a  consideration  advanced,  or  who,  in  ignorance  of  the 
incapacity,  in  good  faith  parted  with  a  consideration  of  value, 


336  Cases  oif  Aqenot.  [Book  I 

relying  on  the  apparent  authority  of  the  agent,  complete  jnstice 
will  be  done,  and  the  law  on  this  subject  be  made  to  harmonize.  *  *  * 

Note.— See,  also,  Davis  vs.  Lane,  10  N.  H.  156;  Drew  vs.  Nunn,  4  Q.  B. 
Div.  661,  29  Moak's  Eng.  Eep.  92;  Hill  vs.  Day,  84  N.  J.  Eq.  150;  Bunee  v». 
Gallagher,  5  BlatcM.  (U.  S.  C.  C.)  481. 


(95  United  States,  425.) 

INSUKANCE   CO.  vs.  DAVIS. 

^United  States  Supreme  Court,  October,  1811.) 

This  was  an  action  to  recover  upon  a  policy  of  life  insurance, 
issued  by  a  New  York  company  upon  the  life  of  a  citizen  and  resi- 
dent of  Virginia.  Payments  of  premiums  had  been  regularly 
made  until  the  beginning  of  the  war,  the  last  one  having  been  paid 
December  28,  1860.  Before  the  war  the  company  had  an  agent. 
Garland,  in  Virginia,  to  whom  the  premiums  were  paid;  he 
entered  the  Confederate  service  as  a  major  and  served  through  the 
war.  Tender  of  the  premium  due  in  December,  1861,  was  made 
to  this  agent  which  he  refused  to  receive,  as  he  had  received  no 
receipts  from  the  company  for  that  year.  A  similar  tender  was 
also  made  after  the  war,  with  like  result.  The  agent  testified  that 
he  refused  to  receive  any  premiums,  had  no  communication  with 
the  company  during  the  war,  and  after  its  close  did  not  resume  his 
agency.  The  insured  died  in  1867.  It  was  claimed  by  plaintiff 
that  the  failure  to  pay  premiums  during  the  war  was  due  to  the 
fault  of  the  company,  as  it  had  not  supplied  its  agent  with  receipts 
and  rendered  it  impossible  for  the  insured  to  pay.  Defendant 
claimed  that  the  war  terminated  the  authority  of  the  agent  to 
receive  payment.  Verdict  for  plaintiff  below,  and  defendant 
brought  error. 

Matt.  E.  Carpenter,  for  plaintiff  in  error, 

Samuel  B.  Paul,  for  defendant  in  error. 

Beadley,  J.  (After  disposing  of  a  preliminary  question.)  That 
war  suspends  all  commercial  intercourse  between  the  citizens  of  two 
belligerent  countries  or  states,  except  so  far  as  may  be  allowed  by 
the  sovereign  authority,  has  been  so  often  asserted  and  explained 
In  this  court  within  the  last  fifteen  years,  that  any  further  discus- 


Ohap.  VII  ]  Insurance  Co.  vs.  Davis.  337 

eion  of  that  proposition  wonld  be  out  of  place.  As  a  consequence 
of  this  fundamental  proposition,  it  must  follow  that  no  active 
business  can  be  maintained  either  personally  or  by  correspondence 
or  through  an  agent,  by  the  citizens  of  one  belligerent  with  the  citi- 
zens of  the  other.  The  only  exception  to  the  rule  recognized  in 
the  books,  if  we  lay  out  of  view  contracts  for  ransom  and  other 
matters  of  absolute  necessity,  is  that  of  allowing  the  payment  of 
debts  to  an  agent  of  an  alien  enemy,  where  such  agent  resides  in 
the  same  state  with  the  debtor.  But  this  indulgence  is  subject  to 
restrictions.  In  the  first  place,  it  must  not  be  done  with  the  view 
of  transmitting  the  funds  to  the  principal  during  the  continuance 
of  the  war,  though,  if  so  transmitted  without  the  debtor's  conniv- 
ance, he  will  not  be  responsible  for  it,  Washington,  J.,  in  Conn 
vs.  Penn,  Pet.  C.  Ct.  496;  Buchanan  vs.  Curry,  19  Johns  (N. 
Y.)  141. 

In  the  next  place,  in  order  to  the  subsistence  of  the  agency 
during  the  war,  it  must  have  the  assent  of  the  parties  thereto, — 
the  principal  and  the  agent.  As  war  suspends  all  intercourse 
between  them,  preventing  any  instructions,  supervision  or  knowl- 
edge of  what  takes  place  on  the  one  part,  and  any  report  or 
application  for  advice  on  the  other,  this  relation  necessarily  ceases 
on  the  breaking  out  of  hostilities  even  for  the  limited  purpoae 
before  mentioned,  unless  continued  by  the  mutual  assent  of  the 
parties.  It  is  not  compulsory;  nor  can  it  be  made  so  on  either 
Bide,  to  subserve  the  ends  of  third  parties.  If  the  agent  continues 
to  act  as  such,  and  his  so  acting  is  subsequently  ratified  by  the 
principal,  or  if  the  principal's  assent  is  evinced  by  any  other 
circumstances,  then  third  parties  may  safely  pay  money  for  the 
use  of  the  principal  into  the  agent's  hands;  but  not  otherwise.  It 
is  not  enough  that  there  was  an  agency  prior  to  the  war.  It 
would  be  contrary  to  reason  that  a  man  without  his  consent  should 
continue  to  be  bound  by  the  acts  of  one  whose  relations  to  him 
have  undergone  such  a  fundamental  alteration  as  that  produced  by 
a  war  between  the  two  countries  to  which  they  respectively  belong; 
with  whom  he  can  have  no  correspondence,  to  whom  he  can  com- 
municate no  instructions,  and  over  whom  he  can  exercise  no 
control.  It  wonld  be  equally  unreasonable  that  the  agent  should 
be  compelled  to  continue  in  the  service  of  one  whom  the  law  of 
nations  declares  to  be  his  public  enemy.  If  the  agent  has  property 
of  the  principal  in  his  possession  or  control,  good  faith  and  fidelity 
22 


338  Cases  on  Agency.  [Book  I 

to  his  trnst  Trill  require  him  to  keep  it  safely  during  the  war  and 
to  restore  it  faithfully  at  its  close.     This  is  all.     *     *     * 

"  What  particular  circumstances  will  be  sufficient  to  show  the 
consent  of  one  person  that  another  shall  act  as  his  agent  to  receive 
payment  of  debts  in  an  enemy's  country  during  war  may  some- 
times be  difficult  to  determine.  Emerigon  says  that  if  a  foreigner 
is  forced  to  depart  from  one  country  in  consequence  of  a  declara- 
tion of  war  with  his  own,  he  may  leave  a  power  of  attorney  to  a 
friend  to  collect  his  debts  and  even  to  sue  for  them.  Traite  des 
Assurances,  Vol.  1,  667.  But  though  a  power  of  attorney,  to  col- 
lect debts,  given  under  such  circumstances,  might  be  valid,  it  is 
generally  conceded  that  a  power  of  attorney  cannot  be  given  daring 
the  existence  of  war  by  a  citizen  of  one  of  the  belligerent  countries 
resident  therein,  to  a  citizen  or  resident  of  the  other;  for  that  would 
be  holding  intercourse  with  the  enemy  which  is  forbidden.  Perhaps 
it  may  be  assumed  that  an  agent  ante  bellum,  who  continues  to  act 
as  such  during  the  war  in  the  receipt  of  money  or  property  on  behalf 
of  his  principal  where  it  is  the  manifest  interest  of  the  latter  that 
he  should  do  so,  as  in  the  collection  of  rents  and  other  debts,  the 
assent  of  the  principal  will  be  presumed  unless  the  contrary  be 
shown;  but  that  where  it  is  against  his  interests,  or  would  impose 
upon  him  some  new  obligation  or  burden,  his  assent  will  not  be 
presumed,  but  must  be  proved,  either  by  his  subsequent  ratification 
or  in  some  other  manner.  In  some  way,  however,  it  must  appear 
that  the  alleged  agent  assumed  to  act  as  such  and  that  the  alleged 
principal  consented  to  his  so  acting.       *       *       * 

In  some  recent  cases  in  certain  of  the  State  courts  of  last  resort, 
for  whose  decisions  we  always  entertain  the  highest  respect,  a  dif- 
ferent view  has  been  taken;  but  we  are  unable  to  concur  therein. 
In  our  judgment,  the  unqualified  assumption  on  which  those 
decisions  are  based — namely,  "  Once  an  agent  always  an  agent,"  or, 
in  other  words,  that  an  agency  continues  to  exist  notwithstanding 
the  occurrence  of  war  between  the  countries  in  which  the  principal 
and  agent  respectively  reside — is  not  correct,  and  that  the  continu- 
ance of  the  agency  is  subject  to  the  qualifications  which  we  have 
stated  above.  *  •  *  "^e  do  not  mean  to  say  that,  if  the 
defendant  had  continued  its  authority  to  the  agent  to  act  in  the 
receipt  of  premiums  during  the  war,  and  he  had  done  so,  a  pay- 
ment or  tender  to  him  in  lawful  money  of  the  United  States  would 
not  have  been  valid;  nor  that  a  stipulation  to  continue  such  author* 


Ohap.  VII]  Insueancb  Co.  vs.  Davis. 

ity  in  case  of  war,  made  before  its  occurrence,  wonld  not  have  been 

a  valid  stipulation,  nor  that  a  policy  of  life  insurance  on  which  no 
premiums  were  to  be  paid,  though  suspended  during  the  war,  might 
not  have  revived  after  its  close.  We  place  our  decision  simply  on 
the  ground  that  the  agency  of  Garland  was  terminated  by  the  break- 
ing out  of  the  war,  and  that,  although  by  the  consent  of  the  parties 
it  might  have  been  continued  for  the  purpose  of  receiving  payments 
of  premiums  during  the  war,  there  is  no  proof  that  such  assent  was 
given,  either  by  the  defendant  or  by  Garland;  but  that,  on  the  con- 
trary, the  proof  is  positive  and  uncontradicted  that  Garland  declined 
to  act  as  agent. 

Judgment  reversed. 

Note.— See,  also,  New  York  L,  Ins.  Co.  vs.  Statham,  93  U.  S.  24;  Ward  vs. 
Smith,  7  Wall.  (U.  S.)  447;  Broton  vs.  Eiatts,  15  Id.  177;  Fretz  vs.  Stover, 
22  Id.  198. 

The  decisions  of  the  State  courts  axe  usually  opposed  to  the  principal  case 
though  earlier  in  point  of  time;  Sands  vs.  Life  Ins.  Co.,  50  N.  Y.  626, 10  Am. 
Rep.  535;  Manhattan  L.  Ins.  Co.  vs.  Warrick.  20  Gratt,  (Va.)  614,  8  Am. 
Rep.  218;  Robinson  va.  Li^e  Aasur.  Co.,  42  N.  Y.  54, 1  Am.  Rep.  490. 


340  Cases  Oif  Agency.  [Book  II 


BOOK     II. 


OF  THE  AUTHORITY  CONFERRED;    ITS  NATURE 
AND    EFFECT. 


CHAPTER    I. 

OF  THE  NATURE  OF  THE  AUTHORITY. 


(9  Wallace.  766.) 

BUTLER  vs.   MAPLES. 

(  United  States  Supreme  Court,  December,  1869. j 

Butler  and  others,  during  the  late  rebellion,  were  copartners 
doing  business  under  the  firm  name  of  Bridge  &  Co.,  at  Memphis, 
Tenn.  One  Shepherd  professed  to  act  as  their  agent.  He  had 
been  authorized,  by  written  agreement  in  1863,  to  purchase  cotton 
for  them  in  Desha  county,  Arkansas,  and  its  vicinity.  He  was  to 
buy  on  the  best  possible  terms,  paying  not  more  than  30  cents  per 
pound  on  the  average,  and  it  was  agreed  that  he  should  pay  as 
little  as  possible  on  the  cotton  until  it  should  be  delivered  on  a  boat 
or  within  the  protection  of  a  gunboat.  There  was  also  the  testi- 
mony of  one  Martin  that  he  had  been  sent  to  Arkansas  by  defend- 
ants. Bridge  &  Co.,  with  money  and  instructions  for  Shepherd,  the 
instructions  being  that  he  should  purchase  cotton  for  the  firm,  but 
was  not  to  pay  more  than  from  30  to  35  cents  per  pound.  He 
might  make  small  advances,  but  was  instructed  not  to  pay  the  bal- 
ance of  the  purchase  money,  or  make  it  payable,  until  the  firm 
should  be  able  to  send  a  boat  up  the  Arkansas  river  for  the  cotton, 
and   until  it  was  in  their  possession,  weighed  and  placed  on  the 


Chap.  I]  BuTLEB  TS.  Maples.  841 

boat.     He  was  directed  to  take  no  risk  for  the  firm  of  the  dcstrac- 
tion  of  the  cotton  except  to  the  extent  of  the  money  advanced. 

While  60  professing  to  act  as  the  agent  of  Bridge  &  Co.,  Shep- 
herd purchased  144  bales  of  cotton  from  Mtiples,  buying  it  as  it  lay, 
and  agreeing  to  pay  40  cents  a  pound  for  it  as  soon  as  weighed. 
Having  been  weighed,  he  removed  54  bales  of  it,  but  90  bales  were 
burned  before  they  could  be  placed  on  a  boat  to  be  carried  up  the 
river.  The  54  bales  went  through  to  Memphis,  and  Maples  went 
there  to  see  Bridge  &  Co.  He  saw  one  of  the  firm,  who  wholly 
denied  Shepherd's  authority,  refused  to  pay  anything  for  the  cotton 
lost,  but  agreed  to  pay  50  cents  a  pound  for  the  54  bales.  Maples 
took  this,  believing  what  was  told  him  as  to  Shepherd's  authority. 
Having  learned  more  regarding  this  matter,  he  sued  Bridge  &  Co. 
for  the  price  of  the  cotton  burned.  Verdict  for  the  plaintiff,  and 
defendants  removed  the  case  to  the  Supreme  Court. 

Mr.  Palmer,  for  plaintiff  in  error. 
P.  Phillips  and  D.  McRae,  contra. 

Steokg,  J.  At  the  trial,  it  was,  of  course,  incumbent  upon 
the  plaintiff  to  prove  not  only  the  contract  of  sale,  but  also  that 
Shepherd,  with  whom  the  contract  had  been  made,  had  authority 
to  act  for  and  bind  the  defendants.  Accordingly,  evidence  was 
submitted  to  show  that  the  cotton  was  purchased  by  Shepherd 
when  professing  to  act  as  an  agent  for  the  defendants.  There  was 
hardly  any  controversy  about  this  fact,  and  no  questions  are  now 
raised  respecting  the  competency,  or  sufficiency  of  the  proof,  or 
the  manner  in  which  it  was  submitted  to  the  jury.  But  the 
authority  of  Shepherd  to  make  the  contract  for  the  defendants, 
and  bind  them  to  its  performance  was  stoutly  denied,  and  it  is 
now  strenuously  insisted  that  the  court  erred  in  the  instructions 
given  to  the  jury  respecting  the  evidence  of  his  agency.  The 
defendants  insist  the  court  erred  in  charging  that  the  written 
agreement  between  him  and  Bridge  &  Co.  constituted  him  their 
general  agent.  "We  do  not  find  that  the  court  did  thus  instruct 
the  jury,  though  it  must  be  admitted  the  charge  may  have  been 
thus  understood.  The  jury  was  instructed  that  if  Shepherd  held 
himself  out  as  the  general  agent  of  Bridge  &  Co.,  the  defendants 
were  bound  by  the  contract  he  made  with  the  plaintiff  for  the  cot- 
ton, though  in  making  the  contract  he  transgressed  the  instruc- 
tions he  had  received,  and  secret  limitations  of  his  authority, 
which  instructions  and  limitations  were  not  revealed  to  the  plaint- 


342  Cases  on  Agency.  [Book  II 

iff.  It  is  tme,  as  has  been  noticed,  there  was  other  evidence  of  a 
<.eneral  agency  beyond  that  which  the  agreement  furnished,  but 
as  it  was  parol  evidence,  its  force  and  effect  were  for  the  jury,  and 
hence  the  court  could  not  rightly  have  charged  that  the  defendants 
were  bound  by  the  contract  unless  the  agreement  did  itself  con- 
stitute She^jherd  a  general  agent. 

But  did  it  not?  The  distinction  between  a  general  and  a  special 
agency,  is  in  most  cases  a  plain  one.  The  purpose  of  the  latter  is 
a  single  transaction  or  a  transaction  with  designated  persons.  It 
does  not  leave  to  the  agent  any  discretion  as  to  the  persons  with 
whom  he  may  contract  for  the  principal,  if  he  be  empowered  to  make 
more  than  one  contract.  Authority  to  buy  for  a  principal  a  single 
article  of  merchandise  by  one  contract,  or  to  buy  several  articles  from 
a  person  named,  is  a  special  agency,  but  authority  to  make  purchases 
from  any  persons  with  whom  the  agent  may  choose  to  deal,  or  to 
make  an  indefinite  number  of  purchases,  is  a  general  agency.  And 
it  is  not  the  less  a  general  agency  because  it  does  not  extend  over 
the  whole  business  of  the  principal.  A  man  may  have  many  gen- 
eral agents — one  to  buy  cotton,  another  to  buy  wheat,  and  another 
to  buy  horses.  So  he  may  have  a  general  agent  to  buy  cotton  in 
one  neighborhood,  and  another  general  agent  to  buy  cotton  in 
another  neighborhood.  The  distinction  between  the  two  kinds  of 
agencies  is  that  the  one  is  created  by  power  given  to  do  acts  of  a 
class,  and  the  other  by  power  given  to  do  individual  acts  only. 
Whether,  therefore,  an  agency  is  general  or  special  is  wholly  inde- 
pendent of  the  question  whether  the  power  to  act  within  the  scope 
of  the  authority  given  is  unrestricted,  or  whether  it  is  restrained  by 
instructions  or  conditions  imposed  by  the  principal  relative  to  the 
mode  of  its  exercise. 

Looking  to  the  agreement  between  Bridge  &  Co.  and  Shepherd, 
it  cannot  be  doubted  that  it  created  a  general  agency.  It  was  a 
delegation  of  authority,  to  buy  cotton  in  Desha  county  and  its 
vicinity,  to  buy,  generally,  from  whomsoever  the  agent,  not  his 
principals,  might  determine.  It  had  in  view  not  merely  a  single 
transaction,  or  a  number  of  specified  transactions,  which  were  in 
the  minds  of  the  principals  when  the  agent  was  appointed,  but  a 
class  of  purchases,  a  department  of  business.  It  is  true  that  it  con- 
tained guards  and  restrictions  which  were  intended  as  regulations 
between  the  parties,  but  they  were  secret  instructions  rather  than 
limitations.  They  were  not  intended  to  be  communicated  to  the 
parties  with  whom  the  agent  should  deal,  and  they  never  were 


Chap,  I  ]  BuTLEE  V8.  Maples.  843 

Bommunicated.  It  was,  therefore,  not  error  to  iDstruct  the  jury  as 
khe  court  did,  that  the  agency  was  a  general  one,  and  that  the 
defendants  were  bound  by  the  contract,  if  Shepherd  held  himself  out 
as  authorized  to  buy  cotton,  and  if  the  plaintiff  had  no  knowledge 
of  the  instru  ctions  respecting  the  mode  in  which  the  agent  was 
required  to  act. 

It  may  be  remarked  here,  that  the  reasons  urged  by  the  plaintiffs 
in  error,  in  support  of  their  denial  of  liability  for  the  engagements 
made  by  Shepherd,  are,  that  he  agreed  to  pay  forty  cents  per  pound 
for  the  plaintiff's  cotton,  that  he  bought  the  cotton  where  it  lay 
instead  of  requiring  delivery  on  board  a  steamboat,  or  within  the 
protection  of  a  gunboat;  and  that  he  did  not  obtain  a  permit  from 
the  government  to  make  the  purchase. 

The  argument  is  that  in  the  first  two  particulars  he  transcended 
his  powers,  and  that  his  authority  to  buy  at  all  was  conditioned 
upon   his   obtaining  a  permit  from   the  government.     All  this, 
however,  is  immaterial,  if  it  was  within  the  scope  of  his  authority 
that  he  acted.     The  mode  of  buying,  the  price  agreed  to  be  paid, 
and  the  antecedent  qualifications  required  of  him,  were  matters 
between  him  and  his  principals.     They  are  not  matters  in  regard 
to  which  one  dealing  with  him  was  bound  to  inquire.    But  even  as 
between  Bridge  &  Co.  and  Shepherd  a  purchase  at  forty  cents  per 
pound  was  not  beyond  his  authority.     He  was  authorized  to  buy 
"on  the  best  possible  terms,  not  paying  an  average  of  more  than 
thirty  cents  per  pound.'*    This  contemplated  his  agreeing  to  pay 
in  some  cases  above  thirty  cents.     The  average  was  regulated,  but 
no  maximum  was  fixed.     Nor  is  there  anything  in  the  agreement 
that  forbade  his  purchasing  cotton  deliverable  at  once  where  it  lay, 
though  not  on  a  boat  or  in  the  protection  of  a  gun-boat.     He  waj3 
authorized  to  purchase  deliverable  at  such  times  and  places  of 
shipment  as  might  be  agreed  upon;  that  is,  deliverable  when  and 
where  it  might  be  stipulated  between  him  and  the  seller.     True, 
he  was  to  pay  as  little  as  possible  until  the  cotton  was  delivered  on 
a  boat,  or  within   the  protection   of  gun-boat;   and  when   thus 
delivered,  the  property  in  the  goods  was  to  vest  in  the  principals, 
excepting  his  share  of  the  profits,  but  he  was  not  prohibited  from 
paying  the  whole  price,  or  agreeing  to  pay  the  whole  price,  if 
insisted  on  by  the  vendor.     The  stipulation  respecting  the  vesting 
of  ownership  was  nothing  more  than  a  definition  of  right  between 
him  and  his  principals,  as  is  manifested  by  the  exception.     Nor 
was  Shepherd  bound  to  procure  a  permit  in  his  own  name.     He 


344  Cases  oisr  Ageitcy.  [Book  II 

might  have  been,  had  it  been  necessary,  bnt  if  under  the  permit 
granted  by  Bridge  &  Co.  he  could  purchase  as  their  agent,  it  was 
all  the  agreement  required. 

It  is  further  objected  to  the  charge  given  to  the  jury  respecting 
general  and  special  agency,  that  it  was  not  applicable  to  the  proof 
in  the  case,  and  was  therefore  irrelevant  and  calculated  to  mislead 
the  jnry,  and,  because,  as  stating  abstract  questions  of  law,  the 
instruction  was  erroneous.  If,  in  truth,  it  was  irrelevant,  it  was 
not  on  that  account  necessarily  erroneous  and  calculated  to  mislead 
the  jury.  We  are  not  shown,  nor  do  we  perceive,  how  the  jury 
could  have  been  misled  by  it.  They  were  instructed  that,  in  cases 
of  special  agency,  one  who  deals  with  the  agent  must  inquire  into 
the  extent  of  his  authority,  but  that  a  principal  is  bound  by  all  that 
his  general  agent  has  done  within  the  scope  of  the  business  in  which 
he  was  employed,  and  this,  though  the  agent  may  have  violated 
special  or  secret  instructions  given  him,  but  not  disclosed  to  the 
party  with  whom  the  agent  deals.  Surely  this  was  correct,  and  it 
was  applicable  to  the  evidence  in  the  case.  It  has  been  intimated 
during  the  argument  that  the  court  should  have  added  that  no  such 
liability  can  exist  to  one  dealing  with  an  agent  with  notice  that 
the  particular  act  of  the  agent  was  without  autliority  from  the  prin- 
cipal. To  this  several  answers  may  be  made.  The  exception  to  the 
general  rule,  which  it  is  said  the  court  below  should  have  recognized, 
is  implied  in  what  the  court  did  say.  Again,  there  was  no  request 
for  any  such  instruction,  and  still  again,  the  evidence  in  the  case 
did  not  demand  it. 

There  was  no  pretense  that  the  plaintiff  had  any  notice  of  secret 
instructions  given  to  Shepherd,  or  of  any  limitations  upon  his 
authority.  Nor  was  there  anything  that  imposed  upon  him  the 
duty  of  making  inquiry  for  secret  instructions  or  for  restrictions. 
There  were  no  circumstances  that  should  have  awakened  suspicion. 
The  plaintiff  was  not  apprised  that  the  authority  was  in  writing. 
The  argument  is  very  far-fetched  that  infers  a  duty  to  inquire 
whether  the  agent  had  private  instruction  from  the  fact  that  the 
contract  was  made  in  a  region  that  had  been  in  a  state  of  insurrec- 
tion.    ♦     *     *  Judgment  affirmed. 

Note. — See,  also,  Munn  va.  Commisson  Co.,  15  Johns.  (N.  Y.)  48,  8  Am. 
Dec.  219;  Rossiler  vs.  Rossiter,  8  Wend.  (N.  Y.)  494,  24  Am.  Dec.  63;  Com- 
mercial Bank  vs.  Kortright,  22  Wend.  (N.  Y.)  US,  34  Am.  Dec.  317; 
Odiorne  vs.Maxcy,  13  Mass.  178;  Williams  vs.  Geliy,  31  Penn.  St.  461,  72 
Am.  Dec.  757;  Lister  va.  Allen,  31  Md.  543,  100  Am.  Dec.  78. 


Chap.  I]  Hatch  vs.  Taylob.  845 

(10  New  Hampshire,  638.) 

HATCH  vs,  TAYLOR. 

(^Superior  Court  of  Judicature  of  New  Hampshire,  July,  1840.) 

Trespass  for  taking  a  horse  of  the  plaintiff's.  It  appeared  on 
the  trial  that  defendant  was  the  owner  of  two  horses,  and  let  them 
to  one  Clark  for  the  purpose  of  drawing  a  load  from  Lowell,  Mass., 
to  Thornton,  N.  H.  While  Clark  had  the  horses  in  Thornton,  he 
exchanged  one  of  them  with  the  plaintiff  for  a  mare  and  colt;  the 
plaintiff  supposing  that  the  horses  belonged  to  Clark.  The  mare 
died  while  Clark  was  on  his  return  to  Lowell.  The  other  horse  and 
the  colt  were  returned  to  defendant,  but  defendant  refused  to 
sanction  the  trade,  and  told  Clark  to  take  the  colt  away.  Clark 
soon  after  sold  the  colt  to  one  Emerson,  who  knew  of  the  trade. 
Defendant  knew  of  this  sale  and  made  no  objection,  but  furnished 
Emerson  the  money  to  buy  the  colt.  Emerson  traded  the  colt  for 
a  mare  with  one  Spofford,  defendant  furnishing  Emerson  the 
money  to  pay  the  difference.  Emerson  then  sold  this  mare  to 
defendant.  Defendant  then  went  to  plaintiff  and  took  away  the 
horse  which  Clark  had  traded  to  him,  denying  Clark's  authority  to 
make  the  trade. 

There  was  some  evidence  on  the  part  of  plaintiff  tending  to  show 
that  Clark,  when  he  left  Lowell,  was  authorized  by  defendant  to 
sell  or  exchange  this  horse.  This  defendant  denied,  and  alleged 
that  if  Clark  had  any  authority,  it  was  a  permission  to  sell  both 
horses  if  he  could  get  a  good  price,  but  not  to  sell  either  alone,  and 
that  any  such  authority  to  sell  would  not  authorize  an  exchange. 
Plaintiff  contended  that  defendant's  subsequent  dealings  in  refer- 
ence to  the  colt  amounted  to  a  ratification.  Verdict  for  the  plaint- 
iff and  defendant  moved  for  a  new  trial. 

Bell  &  Qiiincy,  for  defendant,  contended  that  Clark's  authority 
was  special — to  sell  both  or  neither — and  hence  that  defendant 
was  not  bound. 

Barthtt  &  Rogers,  for  plaintiff,  contended  that  the  instruc- 
tions to  Clark  did  not  limit  his  authority,  and  also  that  defendant 
had  ratified  the  exchange. 

Pareek,  C.  J.  It  cannot  be  known,  from  the  case  before  ns, 
whether  the  Jury  found  that  Clark  did  not  exceed  his  authority 


346  Cases  our  Agency.  [Book  II 

in  making  the  exchange,  or  whether  the  verdict  was  based  upon  a 
ratification  of  the  transaction,  by  the  acts  of  the  defendant  after- 
wards. If,  therefore,  the  instructions  to  the  jury  were  not  sub- 
stantially correct  upon  either  of  these  points,  there  must  be  a  new 
trial. 

There  was  sufficient  evidence  to  warrant  a  finding  that  Clark, 
when  he  received  the  horses  from  the  defendant,  had  an  authority, 
of  some  description,  given  him  respecting  a  sale  or  exchange  of 
one  or  both  of  them.  What  this  authority  was,  whether  to  sell  or 
exchange,  and  what  were  the  limitations  upon  it,  or  the  instruc- 
tions of  the  defendant  relative  to  the  manner  of  its  execution,  did 
not  very  clearly  appear;  the  authority  itself  having  been  conferred 
verbally,  and  the  evidence  establishing  its  existence,  and  what  was 
said  about  it,  being  derived  mainly  from  the  subsequent,  and  in 
Bome  instances  contradictory,  declarations  of  the  defendant 
himself. 

The  instructions  to  the  jury  take  a  distinction  between  the 
authority  given  to  an  agent,  which  he  is  not  only  bound  to  pursue, 
in  duty  to  his  principal,  but  a  deviation  from  which  will  render  his 
act  void  (unless  he  has  been  held  out,  or  enabled  to  hold  himself 
out,  as  having  a  diilerent  authority),  and  the  instructions  or  direc- 
tions which  he  may  receive  from  his  principal,  relative  to  the  man- 
ner in  which  he  is  to  execute  his  authority,  which  are  matters 
between  the  principal  and  agent,  so  that  a  disregard  of  them,  by 
the  latter,  although  it  may  make  him  liable  to  the  principal,  will 
not  vitiate  the  act,  if  it  be  done  within  the  scope  of  the  authority 
itself. 

It  is  very  apparent  that  such  a  distinction  must  exist  in  some 
cases  of  agency,  the  particular  instructions  from  the  principal, 
relative  to  the  circumstances  under  which  the  agent  is  to  act,  being 
intended  as  directions  for  his  guidance,  but  not  operating  as  limi- 
tations upon  the  authority  which  is  conferred.  Thus,  in  case  of  a 
general  agent,  authorized  to  transact  all  business  of  a  particular 
kind,  although  he  can  bind  his  employer  only  by  acts  within  the 
scope  of  his  authority,  yet  that  authority  is  distinct  from  private 
orders  or  instructions  relative  to  the  mode  in  which  it  is  to  be  exe- 
cuted, and  the  latter  cannot  limit  or  impair  the  authority,  or  affect 
the  rights  of  a  party  dealing  with  the  agent,  unless  he  had  knowl- 
edge of  such  private  instructions.  The  books  so  uniformly  con- 
cur in  establishing  this  principle,  that  it  is  unnecessary  to  cite 
authorities  in  support  of  it.     Strangers  cannot  look  at  the  private 


Chap.  I]  Hatch  vs.  Tayloe.  347 

communications  that  may  pass  between  a  principal  and  his  agent. 
15  East,  43,  408;  5  Bing.  442  (E.  C.  L.  R.  500). 

But  whatever  was  the  extent  of  Clark's  authority  in  the  present 
case,  he  was  not  a  general,  but  a  special  agent,  authorized  to  make  a 
Bale,  or  exchange,  of  one  or  two  horses  only;  and  the  question 
arises,  how  far  the  same  rule  is  applicable  to  agencies  of  that 
character. 

To  a  very  considerable  extent,  the  principles  applicable  to  gen- 
eral agencies  apply  also  to  those  of  a  special  and  limited  character. 
Thus,  the  general  principle  that  the  acts  of  the  agent,  within  the 
Bcope  of  his  authority,  bind  his  employer;  and  that  his  acts  beyond 
that  point  are  void  unless  the  principal  has  held  him  out,  or  enabled 
him  to  hold  himself  out,  as  having  more  enlarged  powers  than  he 
actually  possessed,  or  unless  the  employer  ratifies  his  acts,  is  appli- 
cable to  all  classes  of  agencies. 

It  is  contended,  however,  that  the  distinction  between  authority 
and  instructions  does  not  apply  in  cases  of  special  agents,  and  the 
defendant's  counsel  rely  particularly  upon  a  treatise  on  agency, 
recently  published,  which,  it  must  be  admitted,  in  some  measure 
sustains  their  position. 

Speaking  of  the  nature  and  extent  of  the  authority  of  agents,  the 
author  refers  to  *'The  distinction  commonly  taken  between  the 
case  of  a  general  agent,  and  that  of  a  special  agent;  the  former  being 
appointed  to  act  in  his  principal's  affairs  generally,  and  the  latter 
to  act  concerning  some  particular  object; "  and  says:  "  In  the 
former  case  the  principal  will  be  bound  by  the  acts  of  his  agent 
within  the  scope  of  the  general  authority  conferred  on  him,  although 
he  violates  by  those  acts  his  private  instructions  and  directions, 
which  are  given  to  him  by  the  principal,  limiting,  qualifying,  sus- 
pending or  prohibiting  the  exercise  of  such  authority  under  partic- 
ular circumstances.  In  the  latter  case,  if  the  agent  exceeds  his 
special  and  limited  authority  conferred  on  him,  the  principal  is  not 
bound  by  his  acts;  but  they  become  mere  nullities,  so  far  as  he  is 
concerned;  unless,  indeed,  he  has  held  him  out  as  possessing  a  more 
enlarged  authority."  Story  on  Agency.  115.  The  phraseology  of 
his  last  clause  is  similar  in  substance  to  that  of  other  elementary 
writers.     2  Kent's  Com.,  Lecture  41;  1  Livermore  on  Agency  108. 

Taken  strictly,  as  it  stands,  there  can  be  no  doubt  of  the  correct- 
ness of  the  rule.  If  a  special  agent  exceeds  his  special  and  limited 
authority,  without  doubt  the  principal  is  not  bound  by  his  acts, 
unless  he  has  held  him  out,  or  enabled  him  to  hold  himself  out  aa 


848  Cases  on  Agency.  [Book  II 

possessing  a  more  enlarged  anthority.  But  from  its  connection 
'with  the  preceding  clause,  and  from  its  general  connection  with 
the  context,  this  clause  is  understood  as  asserting  that  if  a  special 
agent  exceeds  the  special  and  limited  private  instructions  or  direc- 
tions which  are  given  him  by  the  principal,  limiting  or  qualifying 
suspending  or  prohibiting  the  exercise  of  his  agency,  under  par- 
ticular circumstances,  the  principal  will  not  be  bound,  unless  he 
has  held  the  agent  out  as  possessing  a  more  enlarged  authority  than 
the  right  to  act,  coupled  with  the  instructions,  would  give  him. 
In  other  words,  that  instructions  or  directions  to  a  special  agent, 
notwithstanding  they  are  private  or  secret,  if  intended  to  operate 
upon,  and  limit,  qualify,  suspend  or  prohibit  the  action  of  the 
agent  under  certain  circumstances,  become  part  and  parcel,  and  of 
the  essence  of  the  authority  itself,  so  that  the  agent  will  not  be  act- 
ing within  the  scope  of  his  authority,  or  apparent  authority,  if  he 
disregard  them.  So  it  seems  to  be  understood  by  the  defendant's 
counsel,  and  upon  a  subsequent  page  it  is  stated,  that  if  a  common 
person,  not  a  factor,  should  be  employed  to  make  a  sale,  "and  he 
Bhould  violate  his  private  instructions,  and  deviate  from  his  author- 
ity in  the  sale,  the  principal  would  not  be  bound.*'  Story  on 
Agency,  122. 

If  this  is  so,  there  can  be,  ordinarily,  no  such  thing  as  instruc- 
tions, contra-distinguished  from  authority,  in  the  case  of  a  special 
agent;  as,  whatever  directions  he  receives  respecting  the  mode  and 
manner  in  which  he  is  to  perform  his  duties,  will  partake  of  the 
nature  of  authority,  or  qualification  of  authority,  and  limit  or 
suspend  his  right  to  act,  and  to  bind  the  principal  unless  there  has 
been  some  holding  out  of  the  agent  as  having  an  authority  beyond 
the  import  of  such  directions. 

But  it  is,  we  think,  apparent  enough,  that  all  which  may  be 
laid  to  a  special  agent  about  the  mode  in  which  his  agency  is  to  be 
executed,  even  if  said  at  the  time  that  the  authority  is  conferred,  or 
the  agency  constituted,  cannot  be  regarded  as  part  of  the  authority 
itself,  or  as  a  qualification  or  limitation  upon  it.  There  may  be, 
at  all  times,  upon  the  constitution  of  a  special  agency,  and  there 
often  is,  not  only  an  authority  given  to  the  agent,  in  virtue  of 
which  he  is  to  do  the  act  proposed,  but  also  certain  communica- 
tions, addressed  to  the  private  ear  of  the  agent,  although  they 
relate  to  the  manner  in  which  the  authority  is  to  be  executed,  and 
ire  intended  as  a  guide  to  direct  its  execution. 

Tiiocie  commuuicutions  may,  to  a  certain  extent,  be  intended  to 


Ohap.  I  ]  Hatch  vs.  Tatlob.  349 

limit  the  action  of  the  agent;  that  is,  the  principal  intends  and 
expects  that  they  shall  he  regarded  and  adhered  to  in  the  execution 
of  the  agenc)';  and  should  the  agent  depart  from  them  he  would 
violate  the  instructions  given  him  by  the  principal,  at  the  time 
when  he  was  constituted  agent,  and  execute  the  act  he  was  expected 
to  perform  in  a  case  in  which  the  principal  did  not  intend  that  it 
should  be  done.  And  yet,  in  such  case  he  may  have  acted  entirely 
within  the  scope  of  the  authority  given  him,  and  the  principal  be 
bound  by  his  acts.  This  could  not  be  so,  if  those  communications 
were  limitations  upon  the  authority  of  the  agent.  It  is  only 
because  they  are  not  to  be  regarded  as  part  of  the  authority  given, 
or  a  limitation  upon  that  authority,  that  the  act  of  the  agent  is 
valid,  although  done  in  violation  of  them;  and  the  matter  depends 
upon  the  character  of  the  communications  thus  made  by  the  prin- 
cipal, and  disregarded  by  the  agent.  Thus,  where  one  person 
employs  another  to  sell  a  horse,  and  instructs  him  to  sell  him  for 
$100  if  no  more  can  be  obtained,  but  to  get  the  best  price  he  can, 
and  not  to  sell  him  for  less  than  that  sum,  and  not  to  state  how  low  he 
is  authorized  to  sell,  because  that  will  prevent  him  from  obtaining 
more.  Such  a  private  instruction  can  with  no  propriety  be  deemed  a 
limitation  upon  his  authority  to  sell,  because  it  is  a  secret  matter 
between  the  principal  and  agent  which  any  person  proposing  to 
purchase  is  not  to  know,  at  least  until  the  bargain  is  completed. 
And  if  no  special  injunction  of  secrecy  was  made,  the  result  would 
be  the  same,  for,  fr(  m  the  nature  of  the  case,  such  an  instruc- 
tion, so  far  as  it  regaid^  the  minimum  price,  must  be  intended  as 
a  private  matter  between  the  principal  and  agent,  not  to  be  com- 
municated to  the  persons  to  whom  he  proposed  to  make  a  sale 
from  its  obvious  tendency  to  defeat  the  attempt  to  obtain  a  greater 
sum,  which  was  the  special  duty  of  the  agent.  It  will  not  do  to 
say  that  the  agent  was  not  authorized  to  sell,  unless  he  could  obtain 
that  price.  That  is  the  very  question,  whether  such  a  private 
instruction  limits  the  authority  to  sell. 

It  seems  very  clear  that  anyone  who  proposes  to  deal  with  a 
special  agent  has  the  right,  in  the  first  place,  to  know  what  author- 
ity he  possesses,  and  all  the  limitations  upon  it.  He  deals  with 
him  at  his  peril,  because  he  is  bound  to  enquire  into  the  nature 
and  extent  of  the  authority  conferred.  Snow  vs.  Perry,  9  Pick. 
R.  542;  ScUmmelpennick  vs.  Bayard,  1  Peter's  S.  0.  R.  264;  Story 
on  Agency,  124. 

The  principal  is  not  to  be  bound  by  the  acts  of  the  special  agent 


350  Cases  on  Agency.  [Book  II 

beyond  what  lie  has  authorized,  because  he  has  not  misled  the  con- 
fidence of  the  party  dealing  with  him,  or  enabled  the  agent  to 
practice  any  deception;  has  never  held  the  agent  out  as  having  any 
general  authority  whatever  in  the  premises,  and  if  the  other  party 
trusts  without  enquiry,  he  trusts  to  the  good  faith  of  the  agent, 
and  not  to  that  of  the  principal.     Story  on  Agency,  125. 

But  to  what  purpose  is  the  party  dealing  with  the  agent  to 
enquire,  respecting  that  which  he  is  not  to  know,  and  what  duty 
exists  upon  him  to  know  that,  which  by  the  express  direction  of 
the  principal,  or  from  the  nature  of  the  case,  is  to  be  concealed 
from  him?  Or  how  can  it  be  said  that  he  trusts  the  agent, 
respecting  the  limit  at  which  he  is  authorized  to  sell  or  purchase, 
when  if  he  asks  respecting  that  limit,  the  principal  has  precluded 
him  from  ascertaining  what  it  is?  "Who,  in  fact,  places  confidence 
in  the  agent  in  a  case  like  that  above  stated,  and  who  has  enabled 
the  agent  to  practice  deception,  if  deception  takes  place? 

So  far  as  a  party  dealing  with  a  special  agent  is  bound  to  enquire 
respecting  his  authority,  so  far  he  is  entitled  to  a  definite  and  dis- 
tinct answer.  And  so  far  as  he  is  bound  to  enquire  and  to  know, 
it  is  bad  faith  and  fraud  to  conceal  any  thing  from  him.  But 
would  it  be  deemed  bad  faith  in  the  agent  to  say  nothing  as  to  the 
price  at  which  he  was  instructed  to  sell,  if  the  market  would  afford 
him  no  better?  It  may  very  safely  be  asserted  that  this  is  not  usually 
practiced,  either  by  general  or  special  agents;  and  a  great  change  in 
the  ordinary  mode  of  dealing  must  take  place  before  the  morality  of 
contracts  could  be  considered  as  requiring  such  a  disclosure.  It  would 
certainly  not  be  required  of  the  owner  of  property,  in  making  a  sale, 
to  state  what  was  the  lowest  price  he  had  determined  to  receive,  if 
the  party  proposing  to  purchase  would  give  no  more;  and  it  is  as 
little  expected  of  an  agent,  who  is  employed  to  get  the  best  price 
he  can  obtain,  but  directed  not  to  sell  for  less  than  a  certain  sum. 

So  in  the  case  of  a  person  employed  to  purchase,  if  the  employ- 
ment be  to  purchase  an  article  at  the  best  possible  price,  with 
private  directions  that  he  may  give  a  certain  sum,  but  no  more. 
The  permission  to  give  this  sum,  and  the  direction  not  to  exceed  it, 
are  not  ordinarily  to  be  communicated  to  those  with  whom  he  nego- 
tiates for  a  purchase,  although  intended  to  control  the  action  of 
the  agent  himself.     The  employer  trusts  the  agent. 

No  man  is  at  liberty  to  send  another  into  the  market,  to  buy  or 
sell  for  him,  as  his  agent  with  secret  instructions  as  to  the  manner 
in  which  he  shall  execute  his  agency,  which  are  not  to  be  commu- 


Chap.  I]  Hatch  V3.  Tatloe.  861 

nicated  to  those  with  whom  he  is  to  deal;  and  then,  when  his  agent 
has  deviated  from  those  instructions,  to  say  that  he  was  a  special 
agent — that  the  instructions  were  limitations  upon  his  authority— 
and  that  those  with  whom  he  dealt,  in  the  matte  /  of  his  agency, 
acted  at  their  peril,  hecause  they  were  hound  to  enquire,  where 
enquiry  would  have  been  fruitless,  and  to  ascertiiin  that,  of  which 
they  were  not  to  have  knowledge.  It  would  render  dealing  with  a 
special  agent  a  matter  of  great  hazard.  If  the  principal  deemed 
the  bargain  a  good  one,  the  secret  orders  would  continue  sealed; 
but  if  his  opinion  was  otherwise,  the  injunction  of  secrecy  would 
be  removed,  and  the  transaction  avoided,  leaving  the  party  to  such 
remedy  as  he  might  enforce  against  the  agent. 

From  this  reasoning  we  deduce  the  general  principle,  that  where 
private  instructions  are  given  to  a  special  agent,  respecting  the 
mode  and  manner  of  executing  his  agency,  intended  to  be  kept 
secret,  and  not  communicated  to  those  with  whom  he  may  deal, 
ench  instructions  are  not  to  be  regarded  as  limitations  upon  his 
authority;  and  notwithstanding  he  disregards  them,  his  act,  if 
otherwise  within  the  scope  of  his  agency,  will  be  valid,  and  bind 
his  employer. 

It  is  unnecessary  to  multiply  instances  in  which  the  principle  is 
applicable.  It  may  be  added  that  instructions  which  are  not  to  be 
communicated  to  the  other  party  are  justly  no  more  to  be  regarded 
as  limitations  upon  the  authority  of  the  agent,  than  instructions 
not  to  sell  unless  the  agent  can  obtain  a  good  price,  or  not  to  pur- 
chase without  he  can  obtain  the  property  cheap;  or,  as  stated  by 
some  of  the  evidence  in  this  case,  not  to  exchange  "  unless  he 
could  get  a  good  five  year  old  horse,  and  boot  enough;"  in  which 
cases  the  instruction  is  not  a  limitation  upon  the  authority,  and 
the  transaction  to  be  held  void  unless  the  principal,  or  a  jury, 
should  consider  that  the  agent  had  complied  with  the  direction. 
The  principal  in  such  cases  trusts  the  agent,  who  has  a  discretion 
in  the  matter  {HicJcs  vs.  Hanhin,  4  Esp.  R.  114),  and  it  would  be 
most  mischievous  to  hold  such  direction  as  a  condition,  upon  a 
compliance  with  which  depended  the  validity  of  the  act. 

It  may  be  otherwise  if  the  principal  directs  his  agent  to  offer  his 
horse  for  sale  at  the  sum  of  $100,  and  to  take  no  less;  or  to  pur- 
chase ten  bales  of  cotton,  if  to  be  had  at  a  certain  sum,  and  to  give 
no  more;  for  in  those  cases  the  whole  matter  Avould  be  open  to  the 
knowledge  of  any  one  proposing  to  purchase,  or  sell,  and  the  direc- 


353  Cases  on  Agency.  [Book  H 

tion  may  stand  as  part  and  parcel  of,  and  a  limitation  upon  the 
authority  itself. 

The  view  we  have  thus  taken  is  strongly  supported  by  the  doc- 
trine in  relation  to  agencies,  where  there  is  a  written  authority. 
Mr.  Justice  Story,  in  another  part  of  his  work,  speaking  of 
agencies  of  that  description,  says:  **  "We  are,  however,  carefully  to 
distinguish  in  all  such  cases,  between  the  authority  given  to  the 
agent,  and  the  private  instructions  given  to  him  as  to  his  mode  of 
executing  that  authority.  For,  although  where  a  written  authority 
is  known  to  exist,  or  is,  by  the  very  nature  of  the  transaction,  pre- 
supposed, it  is  the  duty  of  persons  dealing  with  the  agent  to  make 
inquiries  as  to  the  nature  and  extent  of  such  authority,  and  to 
examine  it;  yet  no  such  duty  exists  to  make  inquiries  as  to  any 
private  letter  of  instructions  from  the  principal  to  the  agent;  for 
such  instructions  may  well  be  presumed  to  be  of  a  secret  and  con- 
fidential nature,  and  not  intended  to  be  divulged  to  third  persons. 
Indeed,  it  may  perhaps,  be  doubted,  if  upon  this  subject  there  is 
any  solid  distinction  between  the  case  of  a  special  authority  to  do 
a  particular  act,  and  a  general  authority  to  do  all  acts  in  a  par- 
ticular business.  Each  includes  the  usual  and  appropriate  means 
to  accomplish  the  end.  In  each  case  the  party  ought  equally  to 
be  bound  by  the  acts  of  his  agent,  executing  such  authority  by  any 
of  those  means,  although  he  may  have  given  to  the  agent  separate, 
private,  and  secret  instructions  of  a  more  limited  nature.*'  Story 
on  Agency,  70.  But  he  adds  in  a  note:  *'The  case  intended  to 
be  put  in  the  text,  is  that  of  an  authority  distinct,  and  not  derived 
from  the  instructions;  for,  if  the  original  authority  is  restricted 
and  qualified,  the  restrictions  and  qualifications  constitute  a  part 
of  the  power  itself,  and  govern  its  extent.'* 

It  is  undoubtedly  true  that  "  if  the  original  authority  is  restricted 
and  qualified,  the  restrictions  and  qualifications  constitute  a  part 
of  the  power  itself,  and  govern  its  extent."  But  the  question  is, 
when  is  it  so  restricted  and  qualified,  and  it  is  not  easy  to  dis- 
tinguish the  difference,  in  principle,  between  a  written  authority, 
with  a  private  letter  of  instructions  of  a  secret  and  confidential 
nature,  and  not  intended  to  be  divulged;  and  a  verbal  authority, 
with  verbal  instructions  of  a  secret  and  confidential  nature,  which 
also  are  not  intended  to  be  divulged. 

There  is  anotlier  view  of  the  case  which,  perhaps,  ought  not  to 
be  omitted,    leading    to   the  result  at  which   we   have  already 


Chap.  I]  Hatch  vs.  Tatloe.  353 

arrived.  In  the  case  of  general  agents,  the  principal  will  be  bound 
by  the  acts  of  his  agent,  within  the  scope  of  the  general  authority 
conferred  upon  him,  although  he  violutcs,  by  these  acts,  hia 
private  instructions  and  directions.  He  is  acting  within  the  scope 
of  his  authority,  or  apparent  authority.  So  a  special  agent,  who 
has  private  instructions  for  his  government,  but  which  are  not  to 
be  communicated  to  those  dealing  with  him,  is  acting  within  the 
scope  of  his  authority,  or  apparent  authority,  when  he  is  acting 
within  the  scope  of  what  he  is  to  communicate,  and  what  only  the 
party  dealing  with  him  is  authorized  to  know,  or  is  to  know  if  he 
enquires. 

In  fact,  there  seems  to  be,  in  such  case,  a  holding  out  of  the 
agent,  or  an  authorization  to  him  to  hold  himself  out,  as  having 
an  authority  beyond  the  private  instructions  intended  to  limit 
his  action  upon  the  subject  matter;  and  upon  that  principle 
the  employer  should  be  bound.  "The  principle  which  pervades 
all  cases  of  agency,  whether  it  be  a  general  or  special  agency,  is  this: 
The  principal  is  bound  by  all  acts  of  his  agent  within  the  scope  of 
the  authority  which  he  holds  him  out  to  the  world  to  possess; 
although  he  may  have  given  him  more  limited  private  instructions 
unknown  to  the  persons  dealing  with  him."  Story,  118,  note.  "For 
2  am  bound  by  the  contracts  which  my  agent  makes  in  my  name,  if 
they  do  not  exceed  the  power  with  which  he  was  ostensibly  invested, 
and  it  will  not  avail  me  to  show  that  I  have  given  him  secret 
instructions  to  the  contrary,  which  he  has  not  pursued."  1  Liver- 
more  on  Agency  107.  When  the  principal  sends  his  agent  into  the 
market  with  directions  to  sell  for  him  ten  bales  of  cotton,  or  a  horse, 
and  says  to  him  that  he  may  sell  for  a  certain  sum,  if  he  cannot 
obtain  more,  but  not  to  sell  for  less  than  that,  and  to  get  as  much 
more  as  he  can,  he  has  not  only  enabled,  but  directed,  the  agent  to 
hold  himself  out  as  having  authority  to  sell.  That  matter  is  to  be 
communicated  to  any  one  to  whom  he  proposes  to  make  a  sale;  and 
he  is  acting  within  the  scope  of  the  authority,  which  he  is  thus  held 
out  as  possessing,  when  he  makes  the  sale,  notwithstanding  he  may 
disregard  the  secret  limit  upon  the  price  which  he  was  directed  to 
require. 

It  is  believed  there  is  little  in  the  cases  conflicting  with  the 
views  now  expressed.  In  some  of  them  there  is  a  mere  statement 
of  the  general  principle  that  if  a  special  agent  exceeds  his  author- 
ity, his  act  is  void.  In  others,  the  instruction  was  not  private,  or 
23 


354  Cases  on  Agen-ct.  [Book  II 

there  was  a  clear  excess  of  authority.  2  Kent's  Com.  484  Lee.  41; 
Jeffrey  vs.  Bigelow,  13  Wend.  (N.  Y.)  518,  28  Am.  Dec.  476; 
Rossiier  vs.  Bossiter,  8  TVend.  494,  24  Am.  Dec.  62;  Munn  vs. 
Commission  Co.,  15  Johns.  44,  8  Am.  Dec.  219;  Andrews  vs. 
Kneeland,  6  Cowen,  (N.  Y.)  357;  1  Pet.  (IT.  S.)  264;  9  Pick. 
(Mass.)  542;  Deiuiing  vs.  Smith,  3  Johns.  (N.  Y.)  ch.  344;  Fenn 
vs.  Harrison,  3  D.  &  E.,  760;  Bast  India  Co.  vs.  Hensley,  1  Esp. 
112;  Runqtiist  vs.  DitcheU,  3  Esp.  65;  Batty  vs.  CarsweJl,  2  Johns. 
48;  Gibson  vs.  Colt,  7  Johns.  390;  Beats  vs.  Allen,  18  Johns.  3G3, 
9  Am.  Dec.  221;  Thompson  vs.  Stewart,  3  Conn.  183,  8  Am.  Dec. 
168.     Sed  vide,  11  Wend.  R.  90;  15  East,  467. 

In  the  present  case,  there  was  some  contradiction  in  the  evidence, 
whether  any  authority  was  given  to  Clark;  or,  if  any  was  given, 
what  it  was.  It  became  necessary,  of  course,  to  submit  a  question 
upon  that  to  the  jury.  And  from  the  uncertainty  respecting  what 
was  said  by  the  defendant,  and  how  it  was  said,  it  was  also  left  to 
the  jury  to  find,  in  case  an  authority  was  given,  how  far  it  extended, 
and  whether  what  was  said  about  not  parting  with  one  horse  unless 
both  were  disposed  of,  was  said  in  a  way  to  be  a  limitation  upon 
the  authority,  or  as  mere  instructions  and  directions.  It  does  not 
seem  to  have  appeared,  distinctly,  whether  what  was  said  about 
disposing  of  one  only,  if  anything  of  that  kind  was  in  fact  said, 
was  a  private  direction  to  Clark,  or  was  in  fact  incorporated  into, 
and  part  of  the  authority  itself.  If  Clark  had  an  authority  to 
exchange,  and  the  defendant  told  him,  as  he  himself  afterwards 
stated,  **not  to  part  the  span,"  but  **if  he  could  put  them  away, 
and  get  a  good  five  year  old  horse,  and  boot  enough,  he  might," 
this  declaration,  so  far  as  it  relates  to  a  good  horse,  and  boot 
enough,  cannot  be  held  to  be  a  limitation  on  the  authority;  and  if 
this  is  regarded  as  instructions,  what  was  said  in  connection  with 
it,  about  parting  the  span,  might  well  partake  of  the  same  character. 

The  principle  now  settled  that  whatever  is  not  to  be  communi- 
cated to  the  person  with  whom  the  agent  may  deal  is  not  to  be 
regarded  as  a  limitation  upon  his  authority,  was  not  adverted  to. 
But  no  objection  is  taken  that  the  matter  was  not  properly  sub- 
mitted to  the  jury,  on  the  evidence  before  them,  if  there  may  be 
instructions  to  a  special  agent,  given  at  the  same  time  with  the 
authority,  which  are  not  limitations  upon  his  authority  to  execute 
the  agency,  but  private  directions,  intended  to  limit  his  action  in 
the  matter,  and  a  disobedience  of  which  may  make  him  liable  to 


Chap.  I  ]  Hatch  vs.  Taylob.  355 

hie  principal,  but  will  not  avoid  the  act  done.  It  is  apparent  that 
in  Bome  cases  the  evidence  may  be  of  such  a  character  that  it  must 
be  submitted  to  a  jury  to  determine,  in  effect,  how  far  the 
authority,  so  called,  extended,  by  finding  what  in  fact  was  said  by 
the  principal,  and  what  was  intended  as  mere  private  instructions 
to  the  agent;  and  this  seems  of  that  description.  On  the  view  we 
have  taken,  therefore,  there  is  nothing  in  the  instructions  upon 
this  point,  on  which  to  set  aside  the  verdict. 

The  instructions  to  the  jury  respecting  a  ratification  were  fully 
warranted  by  the  evidence  reported.  That  evidence  is  quite  suffi- 
cient to  authorize  a  belief  that  when  the  colt  was  sold,  and  the 
defendant  furnished  the  money  to  make  the  payment  to  Clark,  and 
when  he  was  afterwards  exchanged,  by  Emerson,  with  Spolford, 
for  the  mare,  and  he  furnished  the  money  to  pay  the  difference, 
Clark  and  Emerson  were  puppets  in  his  hands,  moving  as  he  pulled 
the  wires.  Emerson  was  poor,  and  the  mare  was  immediately  sold, 
as  it  was  called,  to  the  defendant.  Upon  this  part  of  the  case  the  jury 
ought  to  have  found  for  the  plaintiff,  if  there  had  been  no  evidence 
of  any  previous  authority  in  Clark  to  make  the  exchange.  1  Liver- 
more  on  Agency,  45;  Codwise  vs.  Hacker,  1  Caines' R.  526;  Ward 
vs.  Evans,  2  Salk.  442;  Story  on  Agency,  247,  and  authority  cited. 
Having  been  active  in  the  sale  of  the  colt,  the  defendant's  declara- 
tion that  he  would  not  sanction  the  trade,  cannot  avail  him.  1 
Livermore,  395;  Cornwall  vs.  Wilson,  1  Ves.  Sen.  509. 

Judgment  on  the  verdict. 

Note. — Garrard  vs.  Haddan,  67  Penn.  St.  83,  5  Am.  Rep.  413;  Carmi- 
chad  vs.  Buck,  10  Rich.  (S.  C.)  332,  70  Am.  Dec.  226;  Webster  vs.  Wray, 
17  Neb.  579;  Van  Duzer  vs.  Howe,  21  N.  Y.  531. 


(26  Maine  84,  45  Am.  Deo.  96.) 

BRYANT  vs.  MOORE. 

(  Supreme  Judicial  Court  of  Maine,  May,  I846.) 

Assumpsit.  The  defense  was  a  want  of  consideration,  and  a 
breach  of  warranty.  Verdict  for  the  phiiutiff,  and  exception  by 
the  deiendant.     The  other  facts  are  stated  in  the  opinion. 

Oerry,  for  the  defendant. 


356  Cases  ox  AoEifcr.  [Book  II 

Hammons,  for  tlie  plaintiff. 

By  tlie  Court,  Sheplet,  J.  This  suit  is  upon  a  promissory  note, 
made  by  the  defendant  on  March  30,  1844,  and  payable  to  Peter  H. 
McAllaster  or  order.  The  bill  of  exceptions  in  substance  states 
that  McAllaster  on  that  day  exchanged  a  pair  of  the  plaint- 
iff's oxen  with  the  defendant  for  a  pair  of  steers,  and  received 
of  the  defendant  a  note  for  twelve  dollars  for  the  estimated 
difference  in  value.  That  he  returned  the  steers  and  note  to  the 
defendant  on  the  same  day,  and  informed  him  that  the  plaintiff 
would  not  consent  that  the  exchange  should  be  thus  made,  but 
directed  him  to  say  that  the  "defendant  must  send  him  a  note  for 
fifteen  dollars  or  change  back.*'  That  they  then  spoke  of  a  bunch 
on  the  jaw  of  one  of  the  oxen,  and  defendant  said  he  would  give 
the  note  for  fifteen  dollars  if  McAllaster  would  warrant  that  the  ox 
would  not  be  injured  by  the  bunch;  that  McAllaster  did  so  warrant, 
and  thereupon  the  note  in  suit  was  made. 

The  question  presented  is,  whether  the  plaintiff  is  bound  by  that 
warranty.  The  authority  of  a  general  agent  may  be  more  or  less 
extensive;  and  he  may  be  more  or  less  limited  in  his  action  within 
the  scope  of  it.  The  limitation  of  his  authority  may  be  public  or 
private.  If  it  be  public,  those  who  deal  with  him  must  regard  it, 
or  the  principal  will  not  be  bound.  If  it  be  private,  the  principal 
will  be  bound,  when  the  agent  is  acting  within  the  scope  of  his 
authority,  although  he  should  violate  his  secret  instructions.  A 
special  agent  is  one  employed  for  a  particular  purpose  only.  He 
also  may  have  a  general  authority  to  accomplish  that  purpose,  or 
be  limited  to  do  it  in  a  particular  manner.  If  the  limitations 
respecting  the  manner  of  doing  it  be  public  or  known  to  the 
person  with  whom  he  deals,  the  principal  will  not  be  bound,  if  the 
instructions  are  exceeded  or  violated.  If  such  limitations  be  pri- 
vate, the  agent  may  accomplish  the  object  in  violation  of  his 
instructions,  and  yet  bind  his  principal  by  his  acts. 

The  case  of  a  servant  of  a  horse  dealer,  who  on  sale  of  a  horse 
warranted  him  to  be  sound  in  violation  of  hi^  instructions,  and  yet 
bound  his  principal,  is  an  example  of  the  kind  of  agency  last  named. 
This  case  differs  from  it  in  this  respect  only,  that  the  manner,  in 
which  he  was  to  perform  the  particular  act,  was  communicated  to 
the  defendant.  But  that  makes  an  essential  difference;  for,  in  such 
case,  the  principal  is  not  bound.  After  the  first  bargain  the  defend- 
ant was  informed  that  McAllister  had  acted  without  authority,  and 


Chap.  I]  BfiYANT  vs.  Moore.  357 

of  the  terms,  upon  which  the  plaintiff  would  make  the  exchange; 
and  he  had  no  right  to  conclude  that  McAllister  had  any  authority 
to  vary  them.  There  being  no  warranty  in  the  first  bargain  ho 
could  not  be  authorized  to  infer,  that  McAllister  might  make  one 
as  a  part  of  the  second.  On  the  contrary,  he  should  have 
been  admonished,  by  what  had  taken  place,  that  he  had  no  general 
authority  to  make  an  exchange. 

There  is  no  doubt  that  if  one  person  knows  that  another  has 
acted  as  his  agent  without  authority,  or  has  exceeded  his  authority 
as  agent,  and  with  such  knowledge  accepts  money,  property  or 
security,  or  avails  himself  of  advantages  derived  from  the  act,  he 
will  be  regarded  as  having  ratified  it.  This  will  not  be  the  case, 
when  the  knowledge  that  the  person  has  exceeded  his  authority,  is 
not  received  by  the  employer  so  early  as  to  enable  him,  before  a 
material  change  of  circumstances,  to  repudiate  the  whole  transac- 
tion without  essential  injury.  If,  for  instance,  a  merchant  should 
authorize  a  broker,  by  a  written  memorandum  to  purchase  certain 
goods  at  a  price  named,  and  the  broker  should  exhibit  it  to  the 
seller,  and  yet  should  exceed  the  price,  and  this  should  be  made 
known  to  the  merchant  when  he  received  the  goods;  if  he  should 
retain  or  sell  them,  he  would  ratify  the  bargain  made  by  the  broker, 
and  be  obliged  to  pay  the  agreed  price. 

But  if  he  had  received  the  goods  without  knowledge  that  they 
had  been  purchased  at  an  advanced  price,  he  would  not  be  obliged 
to  restore  them,  or  pay  such  advanced  price,  if  he  could  not,  when 
informed  of  it,  repudiate  the  bargain  without  suffering  loss.  In 
such  case  he  would  not  be  in  fault.  The  seller  would  be,  and  he 
should  bear  the  loss.  When  the  plaintiff  in  this  case  was  first 
informed  that  his  agent  had  exceeded  his  authority,  he  had  lost 
the  services  of  the  oxen  for  two  months  and  a  half;  and  the  agent 
was  present  and  denied  that  he  had  made  the  warranty.  The 
defendant  appears  to  have  been  sensible  that  the  plaintiff  would 
then  suffer  loss  by  a  rescission  of  the  contract,  and  to  have  offered 
compensation  therefor.  Whether  the  offer  was  a  reasonable  one  or 
not,  is  immaterial,  for  the  plaintiff,  under  such  circumstances,  was 
not  obliged  to  rescind.  He  does  not  appear  to  have  made  any 
movement  in  the  first  instance  to  effect  the  exchange,  or  to  have 
desired  it,  or  to  have  been  in  fault  when  first  informed  uf  tlie  war- 
ranty. The  defendant  could  not  at  that  time  prescribe  the  terms 
apon  which  the  contract  should  be  rescinded,  or  insist  apon  it. 

Exceptions  overruled. 


358  Cases  on  Agency.  [Book  II 

(23  New  Hampshire,  360,  55  Am.  Deo.  195.) 

TOWLE  vs.  LEAYITT. 

("Superior  Court  of  Judicature  of  New  Hampshire,  December,  18S1.J 

Replevin  for  a  phaeton.  Plaintiff,  the  owner,  left  the  carriage 
•with  one  Lane,  under  an  agreement  by  which  he  was  to  make  some 
repairs  on  it,  and  then  sell  it  if  he  could.  Plaintiff  instructed  him 
to  sell  it  for  fortj-five  dollars  if  possible,  and  if  he  could  not  get 
that  much  to  take  forty  dollars  for  it.  Lane's  property  was  then 
under  attachment  and  advertised  to  be  sold.  It  consisted  ol 
carriages.  When  the  sale  of  his  property  was  over.  Lane  told  the 
auctioneer  to  put  up  the  phaeton  in  suit  for  sale,  having  previously 
employed  a  person  to  bid,  with  directions  not  to  let  the  photon  go 
for  under  forty  dollars.  The  carriage  was  struck  off  to  the 
defendant  Leavitt  for  seventeen  dollars,  and  he  paid  the  amount 
and  took  possession  of  the  carriage.  Lane,  against  the  defendant's 
objection,  testified  that  he  had  no  authority  to  sell  for  less  than 
forty  dollars. 

The  court  instructed  the  jury  that  Towle,  having  instructed 
Lane  not  to  sell  the  property  for  less  than  forty  dollars,  he  had  no 
authority  to  sell  it  for  less,  unless  the  limitation  was  intended  to  be 
kept  secret,  and  that  unless  it  appeared  that  the  limitation  was  not 
to  be  disclosed,  the  authority  of  Lane  was  limited  by  it,  and  unless 
the  price  paid  for  the  property  was  forty  dollars,  he  could  not  give 
title  to  it.  Verdict  for  the  plaintiff,  which  the  defendant  moved 
to  set  aside. 

Wood  and  J.  S.  Wells,  for  the  defendant. 
Marsion,  co?itra. 

Eastman  J.  (After  disposing  of  another  question.)  The  ques- 
tions connected  with  the  agency  of  Lane,  which  are  presented  by 
the  case,  are  more  intricate  than  the  one  already  considered,  and  it 
has  not  been  without  some  difficulty  that  the  court  have  arrived  at 
a  conclusion  in  regard  to  them.  Upon  the  facts  reported,  it  does 
not  appear  that  Leavitt  knew  that  the  carriage  had  ever  belonged 
to  the  plaintiff.  This,  however,  would  be  material,  only  as  making 
it,  or  not,  necessary  for  Leavitt  to  inquire  into  the  nature  of 
Lane's  agcucy  in  selling  the  property.  If  an  agency  be  known, 
and  it  ia  special,  it  is  the  duty  of  the  party  who  deals  with  the 


Chap.  I]  TowLB  vs.  Leavitt.  351) 

agent  to  inquire  into  the  nature  and  extent  of  the  authority  con- 
ferred by  the  principal,  and  to  deal  with  the  agent  accordingly. 
Snow  vs.  Perry,  9  Pick.  542;  Story  on  Ag.  §  133;  Be/mtng  vs. 
Smith,  3  Johns.  Ch.  344;  ScMmmelpenick  vs.  Bayard,  1  Pet.  264, 
290;  Batch  vs.  Taylor,  10  N.  H.  547  {ante,  p.  343.) 

But  where  the  agency  is  not  known,  and  the  principal  has 
elothed  the  agent  with  powers  calculated  to  induce  innocent  third 
persons  to  believe  that  the  agent  owned  the  property  or  had  power 
to  sell,  the  principal  is  bound,  and  strangers  will  not  sufEer.  Story 
on  Ag.  §  93.  In  like  manner,  an  implied  authority  may  be 
deduced  from  the  nature  and  circumstances  of  the  particular  act 
done  by  the  principal.  If  the  principal  sends  his  commodity  to  a 
place  where  it  is  the  ordinary  business  of  the  person  to  whom  it  is 
confided  to  sell,  it  will  be  intended  that  the  commodity  is  sent 
thither  for  the  purpose  of  sale.  And  where  an  article  is  sent  in 
Buch  a  way,  and  to  such  a  place,  as  to  exhibit  an  apparent  purpose 
of  sale,  the  principal  will  be  bound,  and  the  purchaser  will  be  safe, 
although  the  agent  may  have  acted  wrongfully,  and  against  his 
orders  or  duty,  if  the  purchaser  has  no  knowledge  of  it.  Id.  sec. 
94;  Paley  on  Ag.  167;  2  Kent's  Com.  621;  richering  vs.  Bush, 
15  East,  38;  Everett  vs.  Saltus,  15  Wend.  474;  Dyer  vs.  Pearson, 
3  Barr.  &  Cress.  42;  Hern  vs.  Nichols^  1  Salk.  288;  Sanford  vs. 
Handy,  23  Wend.  260. 

Lane  was  a  carriage  maker.  His  business  was  to  make  and  sell 
carriages,  and  also  to  repair  them  when  brought  to  his  shop  for 
that  purpose,  as  was  the  case  with  this  carriage  of  Towle's.  If 
Lane's  sole  business  had  been  to  make  and  sell  carriages,  the 
deposit  of  the  one  in  question  with  him  might  come  within  the 
principle  of  the  preceding  cases;  but  such  was  not  the  fact;  and  a 
purchaser  would  have  no  such  right  to  presume  that  a  second-hand 
carriage  in  Lane's  possession  was  his  as  would  protect  him  from 
the  claim  of  a  lona  fide  owner.  It  is  to  be  observed,  too,  that  thia 
carriage  was  set  up  and  sold  after  the  property  of  Lane,  which  had 
been  previously  attached  and  advertised,  was  disposed  of  by  the 
officer.  The  case  does  not  so  state  in  terms,  but  probably  it  was 
well  known  to  Leavitt  and  others  present  that  the  carriage 
belonged  to  Towle.  But,  however  that  may  have  been,  we  think 
that  the  situation  of  the  property  was  such,  taken  in  connection 
with  Lane's  circumstances  and  the  attachment  and  advertisement 
of  his  property,  as  to  put  a  purchaser  upon  inquiry. 

Assuming  that  Leavitt  knew  that  Lane  was  acting  as  the  special 


360  Cases  on  Agency.  [Book  II 

agent  of  Towlc  in  selling  the  property,  or  proceeding  upon  the 
gronnd  that  the  property  was  so  situated  as  to  put  a  purchaser  upon 
inquiry,  the  question  arises,  whether  the  private  instructions  given 
by  Towle  to  Lnne  not  to  sell  the  carriage  under  forty  dollars, 
were  in  the  nature  of  a  limitation  to  his  authority,  or  were  instruc- 
tions not  to  be  disclosed. 

The  acts  of  a  general  agent,  known  as  such,  govern  his  principal 
in  all  matters  coming  within  the  proper  and  legitimate  scope  of  the 
business  to  be  transacted,  although  he  violates  by  these  acts  his 
private  instructions;  for  his  authority  cannot  be  limited  by  any 
private  instructions,  unless  known  to  the  person  dealing  with  him. 
Whitcnfad  vs.  Turkett,  15  East.  400;  LigUhody  vs.  North  American 
Insurance  Co.,  23  Wend.  22;  Lohdell  vs.  Baker,  1  Met.  202,  35  Am. 
Dec.  358;  2  Kent's  Com.  620;  AUoi  vs.  Ogden,  1  Wash.  174;  Story 
on  Ag.  §  120;  Paley  on  Ag.  200;  Fenn  vs.  Harrison,  3  T.  R.  757; 
Munn  vs.  Commission  Co.,  15  Johns.  44,  8  Am.  Dec.  219. 

With  regard  to  a  special  agent,  the  law  appears  to  be  equally 
well  settled,  by  the  authorities  above  quoted,  that  if  he  exceeds 
the  authority  given,  his  acts  will  not  bind  his  principal.  But  it  is 
to  be  observed  that  a  distinction  is  to  be  taken  between  the 
limited  authority  of  a  special  agent,  one  appointed  for  a  specific 
purpose,  to  do  certain  and  specified  acts,  and  the  private  instruc- 
tions given  to  such  agent.  Where  the  authority  is  limited  in  a 
lona  fide  manner,  and  the  limitation  is  to  be  disclosed  by  the  agent, 
and  is  disclosed  either  with  or  without  inquiry,  any  departure  from 
Buch  authority  or  instructions  will  not  bind  the  principal;  but 
where  the  authority  or  instructions  given  are  in  the  nature  of 
private  instruction. s,  and  so  designed  to  be,  they  will  not  be  bind- 
ing upon  the  parties  dealing  with  the  agent.  And  if  the  instruc- 
tions are  of  such  a  nature  that  they  would  not  be  communicated 
if  an  inquiry  was  made  (even  though  it  be  the  duty  of  the  person 
dealing  with  the  agent  to  make  the  inquiry),  it  is  not  necessary 
that  it  should  be  made,  for  it  would  not  be  communicated  if  made. 
Hatch  vs.  Taylor,  10  N.  H.  538  {ajite,  p.  345);  Bryant  vs.  Moore, 
26  Me.  84,  45  Am.  Dec.  96  {ante,  p.  355 ). 

Upon  this  view  of  the  question,  it  would  seem  that  the  directions 
not  to  sell  the  carriage  for  less  than  forty  dollars  would  be  in  the 
nature  of  private  instructions.  The  fact  does  not  seem  to  us  to 
have  been  intended  to  be  communicated.  This,  however,  may 
admit  of  some  doubt,  and  were  the  case  to  turn  upon  this  point, 
a  more  minute  examination  would  perhaps  be  necessary. 


Chap.  I]  TowLB  vs.  Leaviit.  361 

Bnt  it  appears  to  the  conrt,  that  there  is  one  point  that  mnst 
settle  the  case  for  the  plaintiff.  This  carriage  was  sold  at  auction, 
and  this  we  think  must  be  regarded  as  exceeding  any  authority  or 
instructions  given,  that  could  bind  the  plaintiff.  The  defendant 
knowing  the  property  to  be  the  plaintiff's,  or  if  he  did  not  know 
it,  the  situation  of  the  property  being  such  as  to  render  it  incum- 
bent on  him  to  make  all  necessary  inquiries,  was  bound,  on  seeing 
it  exposed  to  sale  in  an  unusual  manner,  to  inquire  as  to  the  right 
of  Lane  thus  to  sell  it.  Had  he  done  this,  probably  all  difficulty 
would  have  been  avoided,  and  whether  the  directions  not  to  sell 
for  less  than  forty  dollars  be  considered  as  a  limitation  upon  the 
agent's  authority  or  as  private  instructions,  nothing  was  said  about 
Lane's  selling  at  auction,  and  no  inquiries  made  in  regard  to  it. 
A  sale  at  auction  implies  a  sale  at  any  price  that  may  be  offered. 
It  is  ordinarily  the  last  resort  to  reduce  property  into  money,  and 
we  should  be  slow  to  ratify  the  doings  of  an  agent  clothed  with  the 
usual  powers  to  sell  who  should  pursue  such  a  course. 

nad  there  been  any  evidence  that  Towle  authorized  Lane  to  sell 
the  carriage  at  auction,  so  that  the  question  could  have  been 
properly  submitted  to  the  jury,  this  obstacle  in  the  defendants'  case 
might  perhaps  have  been  overcome;  but  we  find  nothing  that  would 
warrant  the  court  in  giving  the  instructions  desired  in  this  respect. 
A  court  cannot  be  required  to  instruct  the  jury  upon  any  supposed 
state  of  facts. 

The  sale,  then,  must  be  held  void,  and  as  a  necessary  conse- 
quence the  defendant  has  no  right  to  the  property,  and  cannot 
sustain  his  defense,  notwithstanding  there  may  have  been  error  in 
some  of  the  rulings  made  against  him. 

It  is  unnecessary  to  comment  further  upon  the  questions  raised 
in  the  case.  We  will  remark,  however,  that  Lane  was  a  competent 
witness.  The  balance  of  his  interest  was  against  the  party  calling 
him.  The  statement  in  the  case  that  the  phaeton  was  of  the  value 
of  fifty  dollars  is  evidently  incidental  and  the  mere  allegation  of  the 
writ.  There  is  no  proof  that  it  was  of  that  value.  The  case  of 
Kingshuiy  vs.  Smith,  13  N.  H.  110,  settles  the  question. 

Judgment  on  the  verdict. 


362  Cases  on  Agency.  [Book  II 

(86  Alabama,  398,  2  L.  R.  A.  808.) 

WHEELER    vs.   McGUIRE. 

C  Supreme  Court  of  Alabama,  December,  1888.) 

Action  to  recover  for  goods  sold  and  delivered.  The  opinion 
states  the  facts. 

J.  Wheeler,  for  appellant. 
TIios.  N.  McClellan,  contra. 

Clopton,  J.  Appellees  seek  to  recover  the  price  of  certain 
goods,  which  they  allege  were  sold  and  delivered  to  the  appellant 
through  T.  A.  Tatliam  as  his  agent.  The  agency  was  not  dis- 
puted, but  defendant  contends  that  Tatham  was  in  his  employ 
merely  as  a  clerk,  and  was  not  authorized  to  purchase  goods  on  a 
credit  and  bind  him.  The  plaintiffs  contend  that  Tatham  was  a 
general  agent,  having  authority  to  transact  all  of  defendant's  mer- 
cantile business,  or  was  held  out  by  defendant,  or  permitted  to 
hold  himself  out  as  such,  so  as  to  justify  the  belief  that  he  was 
clothed  with  the  powers  of  a  general  agent.  The  question  mainly 
controverted  by  the  parties  relates  to  the  character  of  the  agency, 
and  the  extent  of  his  authority. 

The  general  rule  is  that  one  who  deals  with  an  agent  is  bound 
to  ascertain  the  nature  and  extent  of  his  authority;  but,  in  the 
application  of  the  rule,  a  distinction  is  observed  between  general 
and  special  agencies.  The  power  to  do  everything  necessary  to  its 
accomplishment  may  be  included  in  a  particular  agency,  so  that 
private  instructions  as  to  the  particular  mode  of  execution,  which 
are  not  intended  to  be  communicated,  and  are  not  communicated 
to  the  party  with  whom  the  agent  may  deal,  will  not  be  regarded 
as  limitations  on  his  power.  But  with  this  qualification,  a  special 
authority  must  be  strictly  pursued.  A  general  agent  may  exceed 
his  express  authority,  and  the  principal  nevertheless  be  bound. 
Tlie  scope  and  character  of  the  business,  which  he  is  empowered 
to  transact,  is,  as  to  tliird  persons,  the  extent  and  measure  of  his 
authority.  By  his  appointment  the  principal  is  regarded  as  saying 
to  the  public,  that  he  has  the  authority  to  transact  the  business  in 
the  usual  and  customary  modes.  Secret  limitations  on  his  power, 
or  private  instructions  as  to  the  mode  of  transacting  the  business, 


Chap.  I]  Wheeleb  vs.  McGuieb.  3ca 

will  not  affect  the  rights  of  third  persons,  who  have  no  notice  of 
Buch  limitation  or  instructions. 

When  a  general  agent  transacts  the  business  intrusted  to  him, 
within  the  usual  and  ordinary  scope  of  such  business,  he  acts  within 
the  extent  of  his  authority;  and  the  principal  is  bound,  provided 
the  party  dealing  with  the  agent  acts  in  good  faith,  and  is  not 
guilty  of  negligence  which  proximately  contributes  to  the  loss. 
Louisville  Coffin  Co.  vs.  Stokes,  78  Ala.  373.  Third  persons, 
dealing  with  a  person  as  a  general  agent,  are  not  acquitted  of  all 
duty  to  inquire  and  ascertain  the  character  and  extent  of  his 
agency,  but  if  on  inquiry,  it  is  ascertained  to  be  general,  actually 
or  apparently,  they  are  not  bound  to  inquire  whether  there  are 
secret  limitations,  or  private  instructions,  unless  they  have  knowl- 
edge of  facts  which  should  put  them  on  such  inquiry.  As  to 
these  issues,  the  burden  is  on  the  plaintiffs,  to  establish  by  proof 
that  Tatham  was  the  general  agent  of  defendant,  or  that  the  latter, 
by  acts,  conduct,  or  negligence,  justified  the  belief  that  he  had 
authority  to  purchase  goods  on  credit  for  the  store.  If  these 
issues  be  found  in  favor  of  plaintiffs,  no  subsequent  misconduct  of 
the  agent,  misappropriating  the  goods  or  otherwise,  will  affect 
their  rights. 

After  having  given  a  general  charge,  which  in  the  main  is  in 
accord  with  the  foregoing  principles,  the  court  instructed  the  jury 
at  the  instance  of  the  plaintiffs,  **that  if  defendant  employed 
Tatham,  and  put  him  in  charge  of  his  retail  store  at  Wheeler's 
Station  to  conduct  his  mercantile  business,  and  placed  money  to  his 
credit  in  Louisville,  Kentucky,  and  Nashville,  Tennessee,  and 
authorized  him  to  use  this  money  and  also  that  taken  in  from 
cash  sales,  to  replenish  the  stock,  and  instructed  him  not  to 
purchase  on  credit;  he  was  as  to  innocent  third  persons,  the 
general  agent  of  defendant  in  that  business,  and  had  authority 
to  do  whatever  was  usual  or  customary  in  conducting  the 
same;  and  if  plaintiffs  sold  to  Tatham,  as  such  agent,  the  goods 
for  the  price  of  which  this  suit  is  brought,  their  verdict  must  be 
for  plaintiffs,  unless  they  had  notice  that  Tatham's  authority  was 
limited  to  purchases  for  cash."  In  considering  the  correctness  of 
the  instruction,  any  evidence,  if  there  be  such,  tending  to  show 
that  Tatham  was  apparently  clothed  with  the  powers  of  a  general 
agent  can  not  be  taken  into  consideration.  The  proposition  of  the 
charge  is  that  as  to  third  persons,  the  facts  recited  therein,  of 
themselves,  without  the  aid  of  extrinsic  facts  and  circumstances. 


364  Casbs  oh  Agenot.  [Book  II 

constituted  Tatham  a  general  agent  possessing  anthority  to  pur- 
chase goods  on  credit,  in  other  words,  that  he  was  a  general  agent  as 
to  plaintiffs,  though  they  may  have  known  the  terms  of  his  employ- 
ment, including  the  deposit  of  money  with  which  to  purchase  goods, 
except  the  instruction  not  to  purchase  on  credit. 

The  most  general  powers  that  may  be  conferred  on  an  agent  are 
necessarily  limited  to  the  business  or  purpose  for  which  the 
agency  is  created.  The  terms  of  the  employment  of  Tatham  "  in 
charge  of  his  retail  store  at  Wheeler's  Station  to  conduct  his  mer- 
cantile business,*'  in  connection  with  the  limitations  on  his  author- 
ity to  purchase,  limit  his  powers  as  a  general  agent,  to  the  trans- 
action of  the  local  mercantile  business  of  defendant.  In  the  mat- 
ter of  buying  goods,  his  power  was  expressly  restricted  to  the  use 
of  money  specially  deposited  for  that  purpose,  and  to  cash 
receipts.  In  appointing  Tatham  his  agent,  defendant  withheld 
power  to  buy  and  pledge  his  credit  under  any  circumstances.  By 
the  terms  of  his  commission,  Tatham  may  be  regarded  a  general 
agent  to  conduct  the  local  business  of  the  store,  with  special 
powers  to  purchase.  To  construe  it  otherwise,  would  be  to  estab- 
lish the  rule,  that  a  merchant  who  furnishes  his  clerks  with  funds 
to  purchase  goods  and  make  immediate  payment,  clothes  him  with 
power  to  buy  on  his  principaFs  credit,  and  that  persons  dealing 
with  him  are  relieved  of  the  obligation  to  ascertain  the  nature  and 
extent  of  his  warrunt  of  authority.  This  would  press  too  far  the 
application  of  the  doctrine  of  general  agency.  Jaqucs  vs.  Todd, 
3  Wend.  (N.  Y.)  83;  CUaland  vs.  Walker,  11  Ala.  1058,  46  Am. 
Dec.  238,  1  Amer.  Leading  Cases,  679;  1  Pars.  Contr.  43. 

When  an  express  authority  is  given,  the  extent  thereof  must  be 
ascertained  from  its  terms;  and  another  or  different  authority  can- 
not be  implied,  unless  facts  are  shown  from  which  such  other 
authority  may  be  presumed,  or  arises  by  implication  of  lasE, 
Therefore  proof  of  facts  or  circumstances  from  which  the 
authority  is  presumed,  or  arises  by  implication  of  law — an  appear- 
ance of  authority,  caused  not  by  the  agent  himself,  but  by  the 
defendant— is  essential  to  his  liability  for  Tatham's  acts,  not  within 
the  scope  of  his  commission.  In  such  case,  it  is  incumbent  upon 
the  plaintiff  to  prove  that  defendant,  by  ratification,  assent,  or 
acquiescence  in  previous  acts,  held  out  Tatliam  as  clothed  in  the 
character  in  which  he  assumed  to  act,  which  fairly  led  the  plaintiffs 
to  believe  that  more  extensive  powers  had  in  fact  been  given  than 
were  conferred  by  the  terms  of  the  appointment. 


Chap.  I]  Wheeler  vs.  McGuirb.  3G5 

On  this  question,  all  the  circumstances  of  the  transaction,  the 
previous  conduct  of  the  defendant,  and  the  usages  of  the  business, 
may  be  properly  considered.  It  should,  however,  be  remarked,  that 
in  order  to  bind  the  defendant  by  ratification,  assent,  or  acquiescence 
in  prior  acts  of  his  agent  in  excess  of  the  authority  actually  given, 
knowledge  of  the  material  facts  must  be  brought  home  to  the  defend- 
ant, and  if,  in  the  absence  of  express  authority  to  bind  defendant 
in  the  manner  in  which  he  is  sought  to  be  charged,  his  liability 
is  rested  on  previous  recognition  of  similar  acts  of  Tatham  as  his 
agent,  it  is  requisite  to  show  that  plaintiils  sold  the  goods  to  Tatham 
on  the  faith  of  such  previous  recognition.  Si.  John  vs.  Redmondy 
9  Port.  Ala.  428;  Blevins  vs.  Pope,  7  Ala.  371.  In  this  aspect  of 
the  case,  any  evidence  is  relevant,  which  shows  prior  similar  acts  of 
Tatham,  and  tends  to  prove  or  disprove  defendant's  knowledge, 
and  plaintiff's  reliance  on  his  recognition  of  them. 

The  charge  under  consideration  is  objectionable  in  another 
respect.  The  authority,  as  hypothetically  stated  therein,  was 
conferred  in  November,  1881,  when  the  defendant  was  on  the  eve 
of  leaving  home,  to  be  absent  for  months.  There  is  evidence 
tending  to  show  that  on  his  return,  in  June,  1883,  the  authority 
to  purchase  was  revoked.  The  transactions  with  the  plaintiffs  were 
in  January,  February,  and  March,  in  1883,  and  were  the  first 
transactions  which  Tatham  had  with  plaintiffs  as  agent  of  defend- 
ant. An  authority  conferred  is  always  revocable,  unless  coupled 
with  an  interest,  or  founded  on  a  valuable  consideration;  and  may 
be  revoked  expressly,  or  by  acts  clearly  inconsistent  with  its  con- 
tinuance. When  third  parties  have  dealt  with  an  agent  clothed 
with  general  powers,  the  agency  continues  as  to  them,  after  revo- 
cation, until  they  have  notice  thereof.  Also,  the  principal  may  be 
liable  for  the  acts  of  the  agent  after  revocation  to  third  persons 
who  never  dealt  with  him  previously,  if  they,  in  common  with  the 
public  at  large,  are  justified  in  believing  that  such  agency  existed, 
and  have  no  notice  of  its  revocation.  Clafiin  vs.  Lenheim,  66  N. 
Y.  301  {ante,  p.  294),  1  Pars.  Contr.  70. 

On  the  case  as  presented  by  the  record,  these  questions  should 
have  been  submitted  to  the  jury.  They  were  withdrawn  from  their 
consideration  by  the  instruction  to  find  a  verdict  for  the  plaintiffs, 
independent  of  the  evidence  in  regard  to  the  revocation  of  the 
authority  of  Tatham,  and  notice  to  plaintiffs. 

The  court  also  charged  the  jury  that  if  the  defendant  placed 
Tatham  in  charge  of  his  retail  store,  with  instructions  to  buy  foi 


366  Oases  on  Agency.  [Book  II 

cash  only,  it  was  the  duty  of  defendant  to  keep  himself  posted  as 
to  the  manner  in  which  his  agent  conducted  his  business,  and  to 
Bee  that  his  instructions  were  obeyed;  and  if  he  knew  the  agent 
was  buying  on  credit,  or  could  have  known  it  by  the  exercise  of 
ordinary  diligence,  he  is  estopped  to  deny  the  authority  of  Tatham 
to  purchase  on  credit.  The  rule  is  stated  by  Mr.  Wharton  as  follows: 
*'  When  a  principal  conducts  his  affairs  so  negligently,  as  to  lead 
third  persons  to  reasonably  suppose  that  his  agent  has  full  powers, 
then  if  the  agent  exceeds  his  authority  the  principal  must  bear  the 
loss.  It  is  true  that  the  principal  is  not  chargeable  with  culpa 
levessima.  He  is  not  chargeable,  in  other  words,  with  the  conse- 
quences of  those  slight  negligences  into  which  good  business  men 
are  liable  to  fall.  But,  if  he  is  negligent  to  an  extent  beyond  what 
is  usual  with  good  business  men  in  his  department,  and  if  in  conse- 
quence of  his  negligence,  third  parties  repose  trust  on  the  sup- 
posed agent,  then  the  loss,  if  loss  accrue,  must  fall  on  the  principal.'* 
Whart.  on  Agency,  §  123. 

Though  mere  negligence,  mere  want  of  ordinary  diligence,  may 
furnish  the  agent  an  opportuuity  of  undue  assumption  of  authority, 
it  does  not  of  itself  work  an  estoppel.  A  principal  is  not  required 
to  distrust  his  agent,  nor  to  keep  a  vigilant  watch  over  the  manner 
in  which  he  exercises  his  authority,  and  to  see  that  his  instructions 
are  obeyed.  He  may  act  on  the  presumption  that  third  parties, 
dealing  with  his  agent,  will  not  be  negligent  in  ascertaining  the 
extent  of  his  authority,  as  well  as  the  existence  of  his  agency.  And 
negligence,  to  constitute  a  ground  of  liability,  must  have  caused 
the  plaintiffs  to  repose  trust  on  the  authority  of  Tatham,  and  the 
negligence  of  plaintiffs  must  not  have  proximately  contributed  to 
the  loss.  The  charge  exacts  of  the  principal  a  degree  of  diligence 
not  required  by  the  law. 

Many  cases  hold  that  notice  to  an  agent  is  notice  to  his  princi- 
pal, though  acquired  before  the  relation  is  created,  if  present  in 
his  mind  at  the  time  of  the  particular  transaction,  and  he  can 
communicate  it  or  act  upon  it,  without  violating  a  legal  moral 
duty.  It  was,  however,  early  settled  in  this  State,  that  knowledge 
of  an  agent,  to  operate  as  constructive  notice  to  the  principal,  must 
have  been  acquired  after  the  relation  of  principal  and  agent  was 
formed.  This  rule  having  been  followed  ever  since,  whatever 
might  be  our  opinion  were  it  an  open  question,  it  would  not  be 
prudent  to  disturb  it  now.  Mundine  vs.  Pitts,  14  Ala.  84;  McCor- 
mick  vs.  Joseph,  83  Ala.  401;  Frenkel  vs.  Hudson,  82  Ala.  158. 


Chap.  I]  Wheeler  vs.  McGuirb.  36T 

If  the  jury  should  find  that  the  evidence  as  to  any  fact,  essential 
to  plaintiff's  rights  of  recovery,  and  as  to  which  the  bnrden  of 
proof  rests  on  them,  is  evenly  balanced,  or  in  equilibrium,  their 
verdict  must  be  for  the  defendant.  Vandevenisr  vs.  Ford,  60 
Ala.  610, 

We  have  not  deemed  it  necessary  to  specifically  consider  the 

numerous  exceptions  to  the  rulings  of  the  court  on  the  evidence, 

and  in  instructing  the  jury,  each  of  which  is  assigned  for  error. 

We  have  endeavored  to  select  such  as  related  to  the  issues  properly 

made  by  the  evidence  in  its  different  aspects,  and  involved  the 

principles  on  which  the  rights  of   the  parties  must  ultimately 

depend,  and  which  should  govern  the  court  in  putting  the  case 

before  the  jury.     Evidence  which  proximately  tends  to  prove  or 

disprove  these  principal  issues  should  be  received;  and  that  excluded 

which  is  incapable  of  affording  a  reasonable  presumption  of  their 

truth  or  falsity.     And  charges  based  on   partial   facts,  ignoring 

other  material  facts,  such  as  a  bare  shipment  of  goods  to  defendant, 

and  the  appropriation  of  them  to  his  use  by  him  or  his  authorized 

agent,  omitting  reference  to  the  fact  of  a  prior  purchase,  and 

Tatham's  authority,  are  calculated  to  mislead  and  confuse  the  jury, 

and  should  not  be  given. 

Eeversed  and  remanded. 


( 124  Pennsylvania  State,  291,  10  Am.  St.  Kep.  585,  2  L.  E. 

A.  823.) 

HUBBARD  vs.  TENBROOK. 

(Supreme  Court  of  Pennsylvania,  March,  1889.) 

Action  to  recover  for  goods  sold  to  the  alleged  agents  of  defend- 
ants.    Plaintiffs  recovered  and  defendants  bring  error. 

Joseph  L.  Tull,  for  plaintiffs  in  error. 

Joseph,  De  F.  Junkiti,  for  defendants  in  error. 

Mitchell,  J.  (After  criticizing  the  plaintiffs*  statement.) 
Fortunately  for  the  plaintiffs,  their  statement  is  helped  out,  as 
to  the  first  fact,  by  the  bill  of  particulars,  which,  being  sworn  to 
be  a  copy  of  their  book  of  original  entry,  imports  delivery  as  well 
as  sole. 


368  Cases  on  Agency.  [  Book  II 

The  agency,  though  stated  in  the  objectionable  form  of  an 
inference  from  the  previously  recited  evidence,  is  clearly  intended 
to  be  averred  and  may  fairly  be  so  treated. 

Taking  the  statement  therefore  in  its  plain  intent,  it  sets  out 
that  the  plaintiffs_sold  and  delivered  a  quantity  of  hams_tp  one 
Sides,  who  was  conducting  a  grocery  business  in  hi8jown_jiame, 
Tmt  with  the  property  and  as  the  agent  of  defendants.  The 
"defendants  filed  an  affidavit  of  defense,  and  a  supplementary  one, 
the  substance  of  which  is  that  **  Sides  was  not  the  agent  of  defend- 
ants to  purchase  from  plaintiffs  or  anyone  else,"  and  that  he  **  was 
employed  as  salesman  only,  by  said  defendants  without  any 
authority  whatever  to  act  for  or  bind  defendants  for  the  purchase 
of  any  goods  or  merchandise  upon  credit  of  the  said  defendants.*' 

We  have  thus  the  question  presented,  whether  an  agent  may  be 
put  forward  to  conduct  a  separate  business  in  his  own  name,  and 
the  principal  escape  liability  by  a  secret  limitation  upon  the  agent's 
authority  to  purchase. 

The  answer  is  not  at  all  doubtful.  A  man  conducting  an  appar- 
ently prosperous  and  profitable  business  obtains  credit  thereby,  and 
his  creditors  have  a  right  to  suppose  that  his  profits  go  into  his 
assets  for  their  protection  in  case  of  a  pinch  or  an  unfavorable  turn 
in  the  business.  To  allow  an  undisclosed  principal  to  absorb  the 
profits,  and  then  when  the  pinch  comes  to  escape  responsibility  on 
the  ground  of  orders  to  his  agent  not  to  buy  on  credit,  would  be 
a  plain  fraud  on  the  public. 

No  exact  precedent  has  been  cited.  None  is  needed.  The  rule  so 
Tigorously  contended  for  by  the  plaintiffs  in  error,  that  those  deal- 
ing with  an  agent  are  bound  to  look  to  his  authority,  is  freely  con- 
ceded; but  this  case  falls  within  the  equally  established  rule  that 
those  clothing  an  agent  with  apparent  authority  are,  as  to  parties 
dealing  on  the  faith  of  such  authority,  conclusively  estopped  from 
denying  it|^ 

The  affidavits  set  up  no  available  defense,  and  the  judgment  is 
affirmed. 

Note. — See  folio  wing  case. 


Chap.  I  ]  Watteau  vs.  Fbnwiok.  369 

(Law  Eepoets  (1893),  1  Queen's  Bench  Division,  346.) 

WATTEAU  vs.  FENWICK. 

{'English  Court  of  Queen's  Bench,  December,  1892. J 

Action  for  goods  sold.  The  opinion  states  the  facts. 
Finlaij,  Q.  G.  {Scott  Fox  with  him),  for  defendants. 
Boy  dell  Houghton,  for  plaintiff. 

Wills,  J.  The  plaintiff  snes  the  defendants  for  the  price  of 
cigars  snpplied  to  the  Victoria  Hotel,  Stockton-npou-Tees.  The 
house  was  kept,  not  Sy  the  defendants,  bnt  by  a  person  named 
Humble,  whose  name  was  over  thejoor.  Thej)laintiff  gave  credit 
to  Humble,  and  to  him  alone,  and  had^ejv;er  hea^d  of  the  defend- 
ants. The  business,  howe^r,  was  reallyjthedef  end  ants',  andjhey 
had  put  Humble  into  it  to  manage  ^t  for  them,  and  had  forbidden 
"Eim  to  buy  cigars"on^redit  The  cigars,  bowever^jwere  such  as 
would  usuallj  be  "supplied  to  and^_deaU_in_adi_sucl^^ 
ment.  "The  learned  county_court  judge  held  that  the  defendants 
were  liable.     I  am  of  opinion  that  he  was  right.  > 

There  seems  to  be  less  of  direct  authority  on  the  subject  than  one 
would  expect.     But  I  think  that  the  Lord  Chief  Justice  during 
the  argument  laid  down  the  correct  principle,  viz. :     Once  it  is 
established  that  the  defendant  was  the  real  principal,  the  ordinary 
doctrine  as  to  principal  and  agent  applies — that  the  principal  is 
liablefoiLgll  the  acts  of  the  agent  which^re  within  the  authority" 
usually  confided  to_an__agent  of  that  character,  notwithstanding 
limitations,  as  between  the  principal  and  the  a^ent,.  puJt.nponJthat 
authority.     IiTls  said  that  it  is  only  so  where  there  has  been  a/i 
holdmg  out  of  authority — which  cannot  be  said  of  a  case  where* 
the  person  supplying  the  goods  knew  nothing  of  the  existence  of  a| 
principal.     But  I  do  not  think  so.     Otherwise,   in  every  case  of  | 
undisclosed  principal,  or  at  least  in  every  case  where  the  fact  of  | 
there  being  a  principal  was  undisclosed,  the  secret  limitation  ©f  fl 
authority  would  prevail  and  defeat  the  action  of  the  person  deal-  jl 
ing  with  the  agent  and  then  discovering  that  he  was  an  agent  and/ 
had  a  principal. 

But  in  the  case  of  a  dormant  partner  it  is  clear  law  that  no  limi- 
tation of  authority  as  between  the  dormant  and  active  partner  will 
24 


370  Cases  on  Agency.  [Book  II 

avail  the  dormant  partner  as  to  things  within  the  ordinary  author- 
ity of  a  partner.  The  law  of  partnership  is,  on  snch  a  question, 
nothing  but  a  branch  of  the  general  law  of  principal  and  agent, 
and  it  appears  to  me  to  be  undisputed  and  conclusive  on  the  point 
now  under  discussion. 

The  principle  laid  down  by  the  Lord  Chief  Justice,  and  acted 
upon  by  the  learned  county  court  judge,  appears  to  be  identical  with 
that  enunciated  in  the  judgments  of  Cockbuen,  C.  J.,  and 
Mellob,  J.,  in  Edmtinds  vs.  Bushell,  Law  Rep.  1  Q.  B.  97,  the 
circumstances  of  which  case,  though  not  identical  with  those  of  the 
present,  come  very  near  to  them.  There  was  no  holding  out,  as 
the  plaintiff  knew  nothing  of  the  defendant/  I  appreciate  the 
distinction  drawn  by  Mr.  Einlay  in  his  argument,  but  the  principle 
laid  down  in  the  judgments  referred  to,  if  correct,  abundantly 
covers  the  present  case.  I  cannot  find  that  any  doubt  has  ever 
been  expressed  that  it  is  correct,  and  I  think  it  is  right,  and  that 
very  mischievous  consequences  would  often  result  if  that  principle 
were  not  upheld. 

In  my  opinion,  this  appeal  ought  to  be  dismissed  with  costs. 

Lord  Coleridge,  C.  J.,  concurred. 

Appeal  dismissed. 
Note. — Compare  with  the  preceding  casok 


Chap.  II]      Savings  Society  vs.  Savings  Bank.  371 


CHAPTER    11. 

OF  THE  CONSTRUCTION  OF  THE  AUTHORITY  GENERAXLY. 


(36  Pennsylvania  State,  498,  78  Am.  Deo.  390.) 

LOUDON  SAVINGS  FUND  SOCIETY  vs.  HAGERSTOWN 
SAVINGS  BANK. 

^Supreme  Court  of  Pennsylvania,  1860. J 

This  was  an  action  of  assumpsit  brought  by  the  bank  against 
forty-three  persons  doing  business  in  the  name  of  the  London  Sav- 
ings Fund  Society,  to  recover  on  a  certificate  of  deposit  signed  by 
one  Easton,  the  treasurer  of  the  society.  The  defendants  denied 
his  authority  to  make  or  issue  the  certificate.  The  court  below 
directed  a  verdict  for  the  plaintiff. 

lleilly  &  Sharpe,  for  plaintiffs  in  error. 
McLelland  &  McOlure,  for  defendant  in  error. 

Woodward,  J.  (After  stating  the  facts.)  It  is  apparent  that 
the  great  question  raised  upon  the  record  had  reference  to  the 
character  and  extent  of  Easton's  authority  as  the  agent  of  the 
defendants.  The  party  who  avails  himself  of  the  act  of  an  agent 
must,  in  order  to  charge  the  principal,  prove  the  authority  under 
which  the  act  is  done.  If  the  authority  be  created  by  power  of 
attorney  or  other  writing,  the  instrument  itself  must  in  general  be 
produced;  and  since  the  construction  of  writings  belongs  to  the 
oourt,  and  not  to  the  jury,  the  fact  and  scope  of  the  agency  are,  in 
such  cases,  questions  of  law,  and  are  properly  decided  by  the  judge. 
But  the  authority  may  be  by  parol,  or  it  may  be  implied  from  the 
conduct  of  the  employer  in  sanctioning  the  credit  given  to  a  person 
acting  in  his  name,  and  in  many  cases  the  acts  of  an  agent,  though 
not  in  conformity  to  his  authority,  may  yet  be  binding  upon  his 
employer,  who  is  left  in  such  cases  to  seek  his  remedy  against  his 
agent.     Whether  an  employer  be  or  be  not  bound  by  such  acts  as 


372  Cases  on  Agency.  [Book  II 

are  not  conformable  to  the  commission  given  by  him,  depends  prin- 
cipally upon  the  authority  being  general  or  special. 

By  a  general  agent  is  understood  not  merely  a  person  substitnted 
in  the  place  of  another,  for  transacting  all  manner  of  business,  bnt 
a  person  whom  a  man  puts  in  his  place  to  transact  all  his  business 
of  a  particular  kind,  as  to  buy  and  sell  certain  kinds  of  wares,  to 
negotiate  certain  contracts,  and  the  like.  An  authority  of  this 
kind  empowers  the  agent  to  bind  his  employer  by  all  acts  within 
the  scope  of  his  employment,  and  that  power  cannot  be  limited  by 
any  private  order  or  restriction,  not  known  to  the  party  dealing 
with  the  agent.  A  special  agent  is  one  who  is  employed  about  one 
specific  act  or  certain  specific  acts  only,  and  he  does  not  bind  his 
employer  unless  his  authority  be  strictly  pursued.  Paley  on 
Agency,  199  et  seq.  *' A  general  authority,''  said  Lord  Ellen- 
BOEOUGH,  in  Whitehead  vs.  Tuckett,  15  East,  408,  "does  not 
import  an  unqualified  one,  but  that  which  is  derived  from  a  multi- 
tude of  instances;  whereas  a  particular  authority  is  confined  to  an 
individual  instance."  And  in  all  instances  where  the  authority, 
whether  general  or  special,  is  to  be  implied  from  the  conduct  of 
the  principal  or  where  the  medium  of  proof  of  agency  is  per  testes, 
the  jury  are  to  judge  of  the  credibility  of  witnesses  and  of  the 
implications  to  be  made  from  their  testimony. 

As  the  plaintiff  here  did  not  produce  any  written  evidence  of 
Easton's  agency,  it  was  the  duty  of  the  court  to  inform  the  jury 
what  constitutes  agency,  express  or  implied,  special  or  general,  and 
to  refer  to  them  the  questions:  1.  Whether  the  evidence  satisfied 
them  that  Easton  was  either  the  general  or  special  agent  of  the 
defendants;  and,  2,  Whether  the  issuing  of  the  certificate  in  suit 
was  within  the  scope  of  his  authority.  Peries  vs.  Aycinena,  3 
Watts  &  S.  79;  Jordan  vs.  Steiuart,  23  Pa.  St.  247;  Seiple  vs.  Irwin, 
30  Id.  513;  Williams  vs.  Oetty,  31  Id.  461,  72  Am.  Dec.  757. 

Or,  if  it  was  not  a  case  of  strict  agency,  if  Easton  acted  without 
any  authority  in  issuing  the  certificate,  or  transcended  such  as  had 
been  delegated  to  him,  the  question  of  ratification  by  the  defend- 
ants was  also  a  mixed  question  of  law  and  fact.  What  would  in 
law  amount  to  a  ratification  was  for  the  court;  whether  such  proofs 
were  found  in  the  case,  was  for  the  jury.  Such  adoptive  authority 
relates  back  to  the  time  of  the  original  transaction,  and  is  deemed, 
in  law,  the  same  to  all  purposes  as  if  it  had  been  given  before. 
Lawrence  vs.  Taylor,  5  Hill  (N.  Y.),  107-113;  and  see  1  Liver- 


Chap.  II]      Savings  Society  vs.  Savings  Bank.  373 

more  on  Principal  and  Agent,  44—50;  rjiiladclphia  W.  &  B.  Rail- 
road Company  vs.  Cowell,  28  Pa.  St.  337,  70  Am.  Dec.  128.     *    • 

Reversed. 

Note.— See,  alRO,  MUlay  rs.  Whitney,  63  Me.  523  ;  Hartford  Ins.  Co.  va. 
Wilcox,  57  111.  182  ;  Eountree  vs.  Denson,  59  Wis.  522 ;  Danhy  vs.  Coutta, 
L.  R.  2a  Ch.  Div.  500. 


(72  New  York,  279,  28  Am.  Rep.  150.) 

CRAIGHEAD  vs.  PETERSON. 

("New  York  Court  of  Appeals,  January,  1878.J 

Peterson  gave  to  Packard,  his  son-in-law,  a  power  of  attorney 
authorizing  Packard  **  to  draw  and  indorse  any  check  or  checks, 
promissory  note  or  notes,  on  any  bank  in  the  city  of  New  York  in 
which  I  may  have  an  account,  and  especially  in  the  Irving  National 
Bank  of  said  city,  and  to  do  any  and  all  matters  and  things  con- 
nected with  my  account  in  said  Irving  National  Bank,  or  any  other 
bank  in  said  city,  which  I  myself,  might  or  could  do,"  etc.  The 
words  **  promissory  note  or  notes,"  were  interlined.  Packard 
executed  in  the  name  of  Peterson,  and  delivered  to  plaintiff's  testa- 
tor, two  promissory  notes,  payable  at  a  bank  where  Peterson  had 
no  account.  Afterwards,  at  Packard's  request,  Peterson  executed 
a  mortgage,  upon  lands  really  owned  by  Packard,  but  title  to  which 
had  been  taken  in  Peterson's  name  without  his  knowledge,  to  secure 
the  payment  of  the  notes  executed  by  Packard.  Peterson  supposed 
the  mortgage  was  for  the  benefit  of  Packard  or  his  wife,  and  did 
not  know  that  it  was  given  to  secure  notes  purporting  to  be  executed 
by  him.  The  notes  were  not  given  in  Peterson's  business  nof  for 
his  benefit.  In  an  action  on  the  notes,  defendant  had  judgment, 
and  plaintiff  appealed. 

A.  C.  Franseoli,  for  appellants. 
W.  H.  Van  Cott,  for  respondents. 

Allen,  J.  The  plaintiffs'  testator,  taking  the  notes  in  suit, 
made  by  an  agent  professing  to  represent  the  defendant  as  his 
principal,  is  presumed  to  have  known  the  terms  of  the  power  under 
which  the  agent  assumed  to  act.  He  was  bound  to  ascertain  and 
know  the  character  and  extent  of  the  agency,  and  the  words  of  the 


374  Cases  on  Agency.  [Book  II 

instrnment  by  which  it  was  created,  before  giving  credit  to  the 
agent.  If  the  testator  dealt  with  the  agent  without  learning 
the  extent  of  the  powers  delegated  to  him,  he  did  so  at  his  peril, 
and  must  abide  by  the  consequences,  if  the  agent  acted  without  or 
in  excess  of  his  authority.  Story  on  Agency,  §  72.  If  there  was 
an  ambiguity  in  the  language  of  the  power  of  attorney,  there  is  no 
reason  why  in  this  case  there  should  be  a  forced  or  unnatural 
interpretation  of  the  instrument  to  save  the  testator  or  his  repre- 
sentatives from  loss.  The  transaction  was  in  the  city  of  New  York 
where  as  well  the  supposed  principal,  as  Mr.  Pike,  the  plaintiffs' 
testator,  and  the  professed  agent  resided,  and  if  the  power  of 
attorney  was  ambiguous  in  its  expression,  or  of  doubtful  interpre- 
tation, the  defendant  was  accessible  either  to  make  the  notes  in 
person,  or  assent  to  and  ratify  the  act  of  the  agent. 

There  may  be  cases  in  which,  from  necessity,  a  party  dealing 
with  an  agent  must  act  upon  his  own  interpretation  of  the  author- 
ity, and  take  the  risk  of  any  doubtful  or  ambiguous  phraseology. 
But  not  so  here.  The  record  is  barren  of  evidence  as  to  the  origin 
or  consideration  of  the  notes.  The  powers  conferred  upon  the 
agent  were  limited,  and  by  the  power  of  attorney  as  first  drawn, 
Packard,  the  agent,  was  only  authorized  to  draw  and  indorse 
checks  on  any  bank  in  which  the  testator  had  an  account,  "  and  to 
do  any  and  all  matters  and  things  connected  with  his  (my) 
account  in  "  such  banks  which  the  principal  might  or  could  do. 
The  last  and  general  words  only  gave  general  powers  to  carry  into 
effect  the  special  purposes  for  which  the  power  was  given.  Attwood 
V8.  Munninys,  7  B.  &  C.  278;  Perry  vs.  Holl,  2  DeG.  F.  &  J.  38; 
Rossiter  vs.  Ross  Her,  8  Wend.  (N.  Y.)  494,  24  Am.  Dec.  G2;  Story 
on  Agency,  §  62. 

The  primary  and  special  purpose  of  the  power  of  attorney  was 
to  authorize  Packard  to  draw  checks  in  the  business  of  the  prin- 
cipal upon  and  against  his  accounts  in  bank,  and  to  indorse  checks 
probably  for  deposit  to  the  credit  of  the  same  accounts.  The  inser- 
tion of  the  words  *' promissory  note  or  notes''  by  an  interlineation 
after  "  check  or  checks,"  and  before  "  on  any  bank,"  etc.,  must  be 
read  with  the  limited  and  special  purpose  of  the  power  as  first  pre- 
pared in  view,  and  not  as  intending  to  give  a  more  extended  or 
general  power.  The  making  and  indorsing  of  promissory  notes, 
either  for  discount  or  payable  at  the  principal's  bank,  was  a  natural 
adjunct  of  the  authority  given  to  draw  and  indorse  checks,  and 
thus  deal  with  and  in  respect  of  the  bank  accounts  of  the  testator. 


Chap.  II]  Ceaighead  vs.  Peterson.  375 

The  dealings  and  business  relations  of  the  testator  with  the  banks 
with  whom  he  dealt,  and  his  accounts  with  such  banks,  was  the 
subject  of  the  agency,  and  the  instrument  creating  the  agency 
restricted  the  powers  of  the  agent  to  the  making  and  indorsing  of 
commercial  instruments  having  an  immediate  connection  with  the 
banks  with  which  the  principal  had  dealings  and  which  would 
properly  enter  into  his  accounts  with  them. 

The  act  of  making  the  notes  in  suit  was  ultra  vires,  and  the 
defendant  is  not  liable  thereon.  A  formal  instrument  delegating 
powers  is  ordinarily  subjected  to  strict  interpretation,  and  the 
authority  is  not  extended  beyond  that  which  is  given  in  terms,  or 
which  is  necessary  to  carry  into  eHect  that  which  is  expressly  given. 
They  are  not  subject  to  that  liberal  interpretation  which  is  given 
to  less  formal  instruments,  as  letters  of  instruction,  etc.,  in  com- 
mercial transactions  which  are  interpreted  most  strongly  against 
the  writer,  especially  when  they  are  susceptible  of  two  interpreta- 
tions, and  the  agent  has  acted  in  good  faith  upon  one  of  such 
interpretations.  Wood  vs.  Goodridge,  6  Cush.  (Mass.)  117,  52  Am. 
Dec.  771;  Attwood  vs.  Munnings,  supra;  Hubbard  vs.  Elmer,  7 
Wend.  (N.  Y.),  M6,  22  Am.  Dec.  690;  Hodge  vs.  Combs,  1  Black 
(U.  S.)  192. 

The  evidence  of  ratification  and  adoption  of  the  acts  of  the  agent 
by  the  giving  the  mortgages  is  very  slight.  The  evidence  is  that 
the  title  to  the  property  mortgaged  was  but  nominally  in  the 
defendant,  having  been  taken  in  his  name  without  his  knowledge, 
and  as  is  to  be  inferred,  by  Packard,  the  real  owner,  and  this 
mortgage  with  another  was  executed  at  the  request  and  as  was  sup- 
posed by  the  defendant,  for  the  benefit  of  Packard  or  his  daughter, 
and  upon  transactions  with  which  the  defendant  had  no  connection. 

The  reading  of  the  recital  of  the  considertion  by  the  gentleman 
who  presented  the  mortgage  to  the  defendant  for  execution  at  the 
request  of  Packard,  cannot  be  said  to  have  given  him  an  intelligent 
appreciation  of  the  fact  recited,  or  the  effect  it  would  have  upon 
the  legal  liability  of  the  defendant,  who  testified  that  he  did 
not  understand  or  know  that  the  mortgage  was  given  to  secure 
notes  of  which  he  was  the  maker.  The  evidence  is  very  decided 
that  the  notes  were  not  given  in  the  business  of  the  defendant  or 
for  his  benefit,  and  he  had  never  received  any  benefit  or  derived 
any  advantage  from  them  so  far  as  appears.  A  ratification  undei 
such  circumstances  should  be  the  deliberate  and  intentional  act  of 
the  party  sought  to  be  charged  with  full  knowledge  of  all  the  cir- 


876  Cases  on  Agency.  [Book  II 

cumstances.  Story  on  Agency,  §  239.  The  jury  have  found 
upon  satisfactory  eyidence  that  there  has  been  no  adoption  of  these 
notes,  or  ratification  of  Packard's  acts  by  the  defendant. 

There  was  no  error  in  the  admission  of  evidence.  All  the  testi- 
mony offered  and  given  by  the  defendant  was  in  respect  to  the  res 
gestcB,  and  the  transactions  given  in  evidence  by  the  plaintiffs,  and 
to  disprove  any  connection  with  the  making  of  the  notes,  or  the 
consideration  upon  and  for  which  they  were  made,  and  the  relation 
in  which  he  stood  to  the  property  mortgaged,  and  was  all  compe- 
tent, bearing  more  or  less  directly  upon  the  question  of  agency 
and  the  alleged  ratification  of  the  acts  of  the  agent. 

The  question  to  the  defendant,  as  to  his  intent  to  ratify  the  giv- 
ing the  notes,  was  not  the  most  appropriate  interrogatory  to  draw 
out  the  evidence  sought.  The  intent  of  the  act  was  immaterial,  if 
the  defendant  had  deliberately  and  understandingly  executed  a 
deed  reciting  the  notes  as  made  by  him  and  covenanting  to  pay 
them.  The  legal  effect  of  such  an  instrument  would  not  be  evaded 
by  the  want  of  an  actual  intent  to  confirm  the  acts  of  the  agent  by 
whom  the  notes  were  made.  The  answer  of  the  witness  only  went 
to  the  fact  that  he  did  not  deliberately  and  understandingly  execute 
the  mortgage  as  one  given  to  secure  these  two  rotes  as  his  notes 
past  due. 

There  was  no  error  upon  the  trial,  and  the  judgment  must  be 
affirmed. 

Note. — See,  also,  Vanada  vs.  Hopkins,  1  J.  J.  Marsh,  (Ky.)  285,  19  Am. 
Dec.  92;  Reese  vs.  Medlock,  27  Tex.  120,  84  Am.  Dec.  611;  Franklin  vs. 
Ezell,  1  Sneed,  (Term.)  497;  Strong  vs.  Stewart,  9  Heisk.  (Tenn.)  137;  Ben- 
jamin vs.  Benjamin,  ante,  p.  72;  Huntley  vs.  Mathias,  x>ost,  p.408-; 
Oravea  va.  Horton,  ante,  p.  82;  Shackman  vs.  Little,  87  Ind.  187, 


(44  New  Jeesey  Law,  257.) 

OAMDEN   SAFE   DEPOSIT   AND   TRUST   COMPANY  vs. 

ABBOTT. 

f Supreme  Court  of  New  Jersey,  June,  188t.J 

Action  upon  a  promissory  note  drawn  to  the  order  of  J.  B. 
Abbott,  and  signed  with  the  name  of  defendant  by  J.  R.  Abbott, 
who  acted  under  a  power  of  attorney  stating,  "  This  is  to  certif}' 


Ohap.  II  ]  Trust  Co.  vb.  Abbott.  377 

that  J.  E.  Abbott  •  •  •  is  this  day  appointed  with  power  of 
attorney,  and  authorized  by  me  to  sign  my  name  to  any  paper  or 
papers,  notes,  etc.-T.  Abbott/'  Verdict  for  plaintiH,  and  rule  to 
show  cause  why  a  new  trial  should  not  be  granted. 

Chas.  T.  Reed,  for  the  rule. 

Samuel  H.  Grey,  contra. 

Dixoif,  J.  (After  stating  the  facts.)  On  the  trial  a  question  was 
raised  whether  the  words,  *' notes,  etc.,"  were  not  added  fraudu- 
lently after  the  defendant  had  executed  the  instrument,  but  the 
jury  found  against  this  proposition.  Such  an  inquiry  seems  scarcely 
important,  for  the  language  of  the  power,  without  those  words,  is 
so  general  that  it  is  hardly  possible  to  interpret  them  in  such  man- 
ner as  to  exclude  an  authority  to  sign  notes  on  proper  occasions. 
But,  in  whichever  form  the  instrument  was  delivered,  it  did  not 
justify  the  signing  of  notes  for  purposes  outside  of  the  principal's 
business.  Gulick  vs.  Grover,  33  N.  J.  L.  465,  97  Am.  Dec.  728; 
Stainer  vs.  Tysen,  3  Hill,  (N.  Y.)  279.  The  note  in  suit  was  not  given 
for  such  a  purpose,  but  was  put  forth  for  the  personal  benefit  of  the 
attorney,  who  converted  its  proceeds  to  his  own  use.  It  was,  there- 
fore, issued  under  an  apparent  authority,  but  in  fraud  of  the  princi- 
pal. The  holders  of  such  notes  can  recover  of  the  principal  only  on 
showing  that  they  took  them  for  value,  before  maturity,  and  Una 
fide.  North  River  BanJc  vs.  Aymar,  3  Hill,  (N.  Y.)  262;  Duncan 
vs.  Gilbert,  29  N.  J.  L.  521;  Hamilton  vs.  Vought,  34  N.  J.  L.  187; 
Bird  vs.  Daggett,  97  Mass.  494. 

The  only  evidence  touching  this  matter,  in  the  record  before  ug, 
is  that  the  attorney  received  the  amount  of  the  note,  but  when, 
from  whom,  and  under  what  circumstances,  do  not  appear. 

The  verdict  for  the  plaintiff  must  therefore  be  set  aside,  and  a 
new  trial  granted. 

Note. — Authority  must  be  construed  as  authorizing  execution  only  in  the 
separate  private  business  of  the  principal  and  for  his  benefit.  Stemback 
V8.  Bead,  11  Gratt.  (Ya.)  281,  62  Am.  Dec.  648;  Atticood  vs.  Munnings,  7 
Bam.  &  Cress.  278  ;  Wood  vs.  McCain,  7  Ala.  800, 42  Am.  Dec.  612  ;  AduTus 
Express  Co.  vs.  Trego,  85  Md.  47. 


378  Cases  on  Agency.  [Book  II 


CHAPTER    III. 

OF  THE  CONSTRUCTION  OF  AUTHORITIES  OF  CERTAIN  KINDS. 


OF  AGENT  AUTHORIZED  TO  SELL  LAND. 


(99  United  States,  668.) 

LYON  vs.    POLLOCK. 

(Supreme  Court  of  the  United  States,  October,  1878. J 

In  this  action  it  was  sought  to  have  a  deed,  purporting  to  be 
executed  from  Lyon  to  Pollock,  by  one  Paschal  as  his  agent,  but 
which  had  been  held  to  be  insufficient  to  pass  the  title,  declared  to 
be  a  contract  to  convey,  and,  as  such,  to  be  specifically  enforced. 
Decree  below  for  such  performance.     Defendant  appeals. 

Philip  rhiUips  and  W.  H.  Phillips,  for  the  appellant 

No  counsel  for  appellee. 

Field,  J.  This  case  turns  upon  the  construction  given  to  the 
letter  of  Lyon  to  Paschal,  of  the  24th  of  August,  1865.  That 
letter  clearly  did  not  authorize  the  execution  of  a  conveyance  by 
Paschal  in  the  name  of  Lyon  to  the  purchaser.  Its  insufficiency 
in  that  respect  was  authoritatively  determined  in  the  action  at  law 
for  the  land;  the  instrument  executed  by  Paschal  as  the  deed  of 
Lyon  being  held  inoperative  to  pass  the  legal  title.  The  question 
now  is,  was  the  letter  sufllcient  to  authorize  a  contract  for  the  sale  of 
the  lots?  To  determine  this,  and  give  full  effect  to  the  language 
of  the  writer  we  must  place  ourselves  in  his  position,  so  as  to  read 
it,  as  it  were,  with  his  eyes  and  mind. 

It  appears  from  his  answer,  aa  well  a3  his  testimony,  that  he 
was  in  great  danger  of  personal  violence  in  San  Antonio,  shortly 
after  the  commencement  of  the  rebellion,  owing  to  his  avowed 
hostility  to  secession,  or  at  least  that  he  thought  he  was  in 
Buch  danger.  He  apprehended  that  his  life  was  menaced,  and  waa 
in  consequence  induced  to  flee  the  country.  He  possessed  at  the 
time  a  large  amount  of  property,  real  and  personal,  in  San  Antonio. 


Chap.  Ill]  Lyon  vs.  Pollock.  879 

This  he  confided  to  the  care  of  his  partner,  Bennett,  to  whom  he 
gave  a  power  of  attorney,  authorizing  him  to  take  charge  of  and 
control  the  same,  and  sell  it  for  whatever  consideration  and  upon 
such  terms  as  he  might  judge  best,  and  execute  all  proper  instru- 
ments of  transfer;  and  also  to  collect  and  receipt  for  debts  due  to 
him.  Bennett  took  possession  of  Lyon's  property  and  managed  it 
until  July,  18G5,  when  he  transferred  it,  with  the  business  and 
papers  in  his  hands,  to  Paschal,  and  at  once  informed  Lyon  by 
letter  of  the  transfer.  It  was  under  these  circumstances  that  the 
letter  of  Lyon  to  Paschal,  which  is  the  subject  of  consideration, 
was  written.  Its  language  is:  **I  wish  you  to  manage  (my  prop- 
erty) as  you  would  with  your  own.  If  a  good  opportunity  offers 
to  sell  everything  I  have,  I  will  be  glad  to  sell.  It  may  be  parties 
will  come  into  San  Antonio  who  will  be  glad  to  purchase  my  gas 
stock  and  real  estate." 

Situated  as  Lyon  then  was,  a  fugative  from  the  state,  it  could 
hardly  have  been  intended  by  him  that  if  propositions  to  purchase 
his  property  or  any  part  of  it  were  made  to  Paschal,  they  were  to 
be  communicated  to  him,  and  to  await  his  approval  before  being 
accepted.  He  was  at  the  time  at  Monterey,  in  Mexico,  and  com- 
munication by  water  between  that  place  and  San  Antonio  was 
infrequent  and  uncertain;  and  he  states  himself  that  it  was 
impossible  to  send  letters  by  Matamoras,  as  the  road  was  blockaded. 
Writing  under  these  circumstances,  we  think  it  clear  that  he 
intended  by  his  language,  what  the  words  naturally  convey,  that  if 
an  opportunity  to  sell  his  property  presented  itself  to  Paschal,  he 
should  avail  himself  of  it  and  close  a  contract  for  its  sale.  His 
subsequent  conduct  shows,  or  at  least  tends  to  show,  that  such  was 
his  own  construction  of  the  letter,  and  that  he  approved,  or  at 
least  acquiesced  in,  the  disposition  made  of  his  property.  •  *  • 
Holding  the  letter  to  confer  sufficient  authority  to  contract  for  the 
sale  of  Lyon's  real  property  in  San  Antonio,  there  can  be  no  doubt 
of  the  right  of  the  complainants  to  the  relief  prayed.  The  deed 
executed  to  them  by  Paschal  in  the  name  of  Lyon,  though  invalid 
as  a  conveyance,  is  good  as  a  contract  for  the  sale  of  the  property 
described  in  it;  and  is  sufficient,  therefore,  to  sustain  the  prayer 
of  the  bill  for  a  decree  directing  Lyon  to  make  a  conveyance  to 
them.  Decree  affirmed. 

Note — See,  also,  Mar^  vs.  Given,  23  Me.  55,  89  Am.  Dec.  600;  Rice  V8. 
Tavemier,  8  Minn.  248,  83  Am.  Dec.  778;  DeCordova  vs.  Knowles,  37  Tex. 
19;  Billings  vs.  Morrow,  7  Cal.  171,  08  Am.  Dec.  Ii35. 


3ij0  Cases  ok  Agekcx.  [Book  II 

(45  Minnesota,  121,  22  Am.  St.  Rep.  724.) 

GILBERT  vs.   HOW. 
f  Supreme  Court  of  Minnesota,  December,  1890. J 

Ejectment.  Plaintiff  claimed  title  by  virtue  of  a  foreclosnre 
proceeding,  to  which  George  A.  Bucklin  was  made  the  sole  defend- 
ant. Bucklin  derived  his  title  through  Mary  A.  Clark  under  a 
conveyance  purporting  to  be  made  by  Mary  A.  Clark  and  Benjamin 
F.  Bucklin,  by  Franklin  Chase,  their  attorney  in  fact.  Judgment 
below  for  defendant. 

H.  J.  Peck,  for  appellant. 

Southworth  &  Coller,  for  respondent. 

Collins,  J.  The  deed  in  which  Mary  A.  Clark  and  B.  F. 
Bucklin  were  named  as  grantors,  and  George  A.  Bucklin  as  grantee, 
was  executed  by  Bucklin  in  person,  and  by  Franklin  Chase  in 
behalf,  and  as  the  attorney  in  fact,  of  Mary  A.  Clark.  The  land 
described  therein  was  then  the  sole  property  of  the  grantor  last 
mentioned,  so  far  as  was  shown  by  the  record,  Bucklin  having  no 
interest  in  it.  The  power  of  attorney,  by  virtue  of  which  Chase 
assumed  to  act,  was  a  joint  power,  executed  and  delivered  to  him 
by  Mary  A.  Clark  and  B.  F.  Bucklin.  By  its  terms,  the  latter  con- 
stituted and  appointed  Chase  **  our  true  and  lawful  attorney  for 
us,  and  in  our  names,"  to  enter  upon  and  take  possession  of  all  lands 
**  to  which  we  are  or  may  be  in  any  way  entitled  or  interested,  and 
to  grant,  bargain,  and  sell  the  same,  •  *  •  and  for  us  and 
in  our  names  to  make  *  *  •  and  deliver  good  and  sufficient 
deeds;  *  »  *  and  we  do  hereby  further  constitute  the  said 
Chase  our  attorney,  and  in  our  names  to  transact  and  manage  all 
business;  ♦  ♦  *  and  also  in  our  names  to  demand,  sue  for, 
recover,  and  receive  all  sums  of  money,*'  etc. 

All  powers  of  attorney  receive  a  strict  interpretation,  and  the 
authority  is  never  extended  by  intendment,  or  construction,  beyond 
that  which  is  given  in  terms,  or  is  absolutely  necessary  for  carrying 
the  authority  into  effect,  and  that  authority  must  be  strictly  pur- 
sued. Rossiter  vs.  liossiter,  8  Wend.  (N.  Y.)  494,  24  Am.  Dec. 
62;  Br,'7Ltley  vs.  Insurance  Co.,  63  Ala.  554;  Bliss  vs.  Clark,  16 
Gray,  (Mass.)  60.  This  rule  was  applied  in  Rice  vs.  Tavcrnier,  8 
Minn.  248,  83  Am.  Dec.  778;    Qreve  vs.  Cojjin,  14  Minn.  345,  100 


Chap.  Ill]  GiLBEET  vs.  How.  381 

Am.  Dec.  229;  BerTcey  vs.  Jiidd,  22  Minn.  287.  And  a  party  deal- 
ing with  an  agent  is  chargeahle  with  notice  of  the  contents  of  the 
power  under  which  he  acts,  and  must  interpret  it  at  his  own  peril. 
Sandford  vs.  Hatidy,  33  Wend.  (N.  Y.)  260;  Nizon  vs.  Hy scroti, 
5  Johns.  (N.  Y.)  58. 

The  power  under  which  Chase  pretended  to  convey  a  tract  of 
land,  the  sole  property  of  Mary  A.  Clark,  must  be  construed  as 
authorizing  him  to  convey  such  lands,  only,  as  were  held  and  owned 
by  his  two  constituents  jointly,  or  in  common,  and  not  the  lands 
held  and  owned  by  either,  and  separately.  By  its  terms,  the 
attorney  was  not  empowered  to  convey  land  held  and  owned  as  the 
undivided  property  of  one,  and  in  which  the  other  had  no  interest, 
nor  was  he  given  au'thority  to  transact  any  business,  except  that  in 
which  the  parties  were  jointly  concerned.  The  authority  was 
special,  and  the  written  power  joint,  in  form.  No  mention  was 
made  of  the  separate  property  or  business  of  either  of  the  parties 
who  executed  it,  and  it  cannot  be  inferred  that  they  intended  to 
confer  upon  Chase  the  power  to  convey  such  property,  or  to  transact 
Buch  business.  Dodge  vs.  Hopkins,  14  Wis.  630  {ante,  215) ;  Johnston 
vs.  Wright,  6  Cal.  373.  This  rule  is  also  recognized  in  Holladayvs, 
Daily,  19  Wall.  (U.  S.)  606,  although  the  point  was  not  directly 
in  issue.  The  deed  referred  to  was  a  nullity,  and  did  not  convey 
the  land  to  George  A.  Bucklin,  and,  when  the  mortgage  given  by 
Mary  A.  Clark  was  foreclosed  by  action  brought  against  Bucklin 
alone,  the  proper  party,  the  owner  of  the  land,  was  not  made  a 
defendant. 

The  foreclosure  sale  was  void,  and  a  purchaser  thereat  acquired 
no  interest  in  the  land  sold.  As  the  plaintiff's  rights  were  predicated 
upon  this  sale,  he  failed  to  establish  title  to  the  land  in  himself 
upon  the  trial. 

Affirmed. 

Note.— See  note  to  the  principal  case  in  23  American  State  Eeports,  726. 
See,  also,  Deakin  va.  Underwood,  ante  p.  68* 


382  Cases  onf  Ageucy.  [Book  II 

(8  HOWAED,  451.) 

LEKOY  vs.  BEARD. 

C  United  States  Supreme  Court,  January,  1850. J 

This  was  an  action  by  Beard  against  LeEoy  and  wife  to  recover 
for  the  breach  of  a  warranty  contained  in  a  deed  executed  by  LeRoy 
and  wife  through  an  agent  Starr,  by  authority  of  a  letter  of 
attorney.     Verdict  for  plaintiff,  and  defendants  allege  error. 

Mr.  Blunt  and  Mr.  Webster,  for  plaintiff  in  error. 
Mr.  Seeley  and  Mr.  Baldwin,  for  defendant  in  error. 

Woodbury,  J.  (After  disposing  of  another  question.)  The 
next  instruction  to  which  the  original  defendant  objected,  and 
which  is  the  chief  and  most  diificult  one  that  can  properly  be  con- 
sidered by  us,  under  the  present  bill  of  exceptions,  is  that  the 
power  of  attorney  by  LeEoy  and  his  wife  to  Starr,  their  agent,  was 
broad  enough  to  confer  upon  him  "  authority  to  give  a  deed  of  the 
land  with  covenant  of  warranty." 

This  power  of  attorney  is  given  in  extenso  in  the  statement  of  the 
case.  It  appears  from  its  contents  that  LeEoy,  after  authorizing 
Starr  to  invest  certain  moneys  in  lands  and  real  estate  in  some  of 
the  western  states  and  territories  of  the  United  States,  at  the  dis- 
cretion of  the  said  Starr,  empowered  him  **  to  contract  for  the  sale 
of  and  to  sell  either  in  whole  or  in  part,  the  lands  and  real  estate 
60  purchased  by  tlie  said  Starr,"  and  "  on  such  terms  in  all  respects 
as  the  said  Starr  shall  deem  most  advantageous."  Again  he  was 
authorized  to  execute  **  deeds  of  conveyance  necessary  for  the  full 
and  perfect  transfer  of  all  our  respective  right,  title,"  etc.,  "as 
sufficiently  in  all  respects  as  we  ourselves  could  do  personally  in 
the  premises,"  "  and  generally  as  the  agent  and  attorney  of  the 
said  Jacob  Le  Eoy  "  to  sell  "on  such  terms  in  all  respects  as  he 
may  deem  most  eligible." 

It  would  be  difficult  to  select  language  stronger  than  this  to  jus- 
tify the  making  of  covenants  without  specifying  them  eo  nomine 
When  this  last  is  done,  no  question  as  to  the  extent  of  the  power 
can  arise,  to  be  settled  by  any  court.  But  when,  as  here,  this  last 
is  not  done,  the  extent  of  the  power  is  to  be  settled  by  the  language 
employed  in  the  whole  instrument  (4  Moore,  448)  aided  by  the 
situation  of  the  parties  and  of  the  property,  the  usages  of  the  ooua- 


Chap.  Ill  ]  Leroy  vs.  Beard.  383 

try  on  such  subjects  the  acts  of  the  parties  themselves,  and  any 
other  circumstance  having  a  legal  bearing  and  throwing  light  upon 
the  question. 

That  the  language  above  quoted  from  the  power  of  attorney  is 
Bufificient  to  cover  the  execution  of  such  a  covenant  would  seem 
naturally  to  be  inferred,  first  from  its  leaving  the  terms  of  the  sale 
to  be  in  all  respects  as  Starr  shall  deem  most  advantageous. 
**  Terms  "  is  an  expression  applicable  to  the  conveyances  and  cov- 
enants to  be  given,  as  much  as  to  the  amount  of,  and  the  time  of 
paying,  the  consideration.  Rogers  vs.  Kneeland,  10  Wendell,  (N. 
Y.)  219.  To  prevent  misconception,  this  wide  discretion  is  reit- 
erated. The  covenants,  or  security  as  to  the  title,  would  be  likely 
to  be  among  the  terms  agreed  on,  as  they  would  influence  the  trade 
essentially,  and  in  a  new  and  unsettled  country  must  be  the  chief 
reliance  of  the  purchasers. 

To  strengthen  this  view,  the  agent  was  also  enabled  to  execute 
conveyances  to  transfer  the  title  ''  as  sufficiently  in  all  respects  as 
we  ourselves  could  do  personally  in  the  premises,"  and  it  is  mani- 
fest that  inserting  certain  covenants  which  would  run  with  the 
land  might  transfer  the  title  in  some  events  more  perfectly  than 
it  would  pass  without  them;  and  that,  if  present  "  personally,"  he 
could  make  such  covenants,  and  would  be  likely  to  if  requested, 
unless  an  intention  existed  to  sell  a  defective  title  for  a  good  one, 
and  for  the  price  of  a  good  one.  It  is  hardly  to  be  presumed  that 
anything  so  censurable  as  this  was  contemplated. 

Again,  his  authority  to  sell,  "on  such  terms  in  all  respects  as 
he  may  deem  most  eligible,"  might  well  be  meant  to  extend  to  a  term 
or  condition  to  make  covenants  of  seizin  or  warranty,  as  without 
such  he  might  not  be  able  to  make  an  eligible  sale,  and  obtain 
nearly  so  large  a  price. 

Now  all  these  expressions,  united  in  the  same  instrument,  would 
prima  facie,  in  common  acceptation,  seem  designed  to  convey  full 
powers  to  make  covenants  like  these,  and  although  a  grant  of 
powers  is  sometimes  to  be  construed  strictly,  (Com.  Dig.  Poiar,  B. 
1  and  0  6;  1  Bl.  K.  283;)  yet  it  does  not  seem  fit  to  fritter  it  away 
in  a  case  like  this,  by  very  nice  and  metaphysical  distinctions,  when 
the  general  tenor  of  the  whole  instrument  is  in  favor  of  what  was 
done  under  the  power,  and  when  the  grantor  has  reaped  the  benefit 
of  it  by  receiving  a  large  price,  that  otherwise  would  probably 
never  have  been  paid.  Nind  vs.  Marshall,  1  Brod.  and  Bingh. 
319;  10  Wendell,  219,  252.     This  he  must  refund  when  the  title 


384  Cases  on  Agekct.  [Book  II 

fails,  or  he  accessory  to  what  seems  fraudulent.  1  J.  J.  Marsh,  292. 
Another  circnmstance  in  support  of  the  intent  of  the  parties  to 
the  power  of  attorney  to  make  it  broad  enough  to  cover  warranties, 
is  their  position  or  situation  as  disclosed  in  the  instrument  itself. 
Solly  vs.  Forbes,  4. Moore,  448.  LeRoy  resided  in  New  York,  and 
Starr  was  to  act  as  his  attorney  in  buying  and  selling  lands  in  the 
"Western  States  and  Territories,'*  and  this  very  sale  was  as  remote 
as  Milwaukee,  in  Wisconsin.  For  aught  which  appears,  LeEoy, 
Beard,  and  Starr,  were  all  strangers  there,  and  the  true  title  to  the 
soil  little  known  to  them;  and  hence  they  would  expect  to  be 
required  to  give  warranties  when  selling,  and  would  be  likely  to 
demand  them  when  buying. 

The  usages  of  this  country  are  believed,  also,  to  be  very  uniform 
to  insert  covenants  in  deeds.  In  the  case  of  the  Lessee  of  Clarh 
vs.  Courtney,  5  Peters,  (U.  S.)  349,  Justice  Story  says:  "This  is 
the  common  course  of  conveyances,**  and  that  in  them  "  covenants 
of  title  are  usually  inserted.**  See,  also,  6  Hill,  (N.  Y.)  338.  Now 
if  in  this  power  of  attorney  no  expression  had  been  employed 
beyond  giving  an  authority  to  sell  and  convey  this  land,  saying 
nothing  more  extensive  or  more  restrictive,  there  are  cases  which 
strongly  sustain  the  doctrine  that,  from  usage  as  well  as  otherwise, 
a  warranty  by  the  agent  was  proper  and  would  be  binding  on  the 
principal. 

It  is  true  that  some  of  these  cases  relate  to  personal  estate,  and 
some  perhaps  should  be  confined  to  agents  who  have  been  long 
employed  in  a  particular  business,  and  derive  their  authority  by 
parol,  no  less  than  by  usage,  and  consequently  may  not  be  decisive 
by  analogy  to  the  present  case.  3  D.  &  E.  757;  HeJyear  vs.  Haivke, 
5  Es.  Ca.  72,  note;  Pickering  vs.  Busk,  15  East.  45;  2  Camp  N. 
P.  555;  6  Hill  (N.  Y.)  338;  4  D.  &  E.  177. 

So  of  some  cases  which  relate  to  the  quality  and  not  to  the  title 
of  property.  Andrews  vs.  Kneeland,  6  Cowen,  (N.  Y.)  354;  The 
Monte  Allegre,  9  Wheat.  (U.  S.)  648;  6  Hill,  (N.  Y.)  338. 

But  where  a  power  to  sell  or  convey  is  given  in  writing,  and  not 
aided,  as  here,  by  language  conferring  a  wide  discretion,  it  still 
must  be  construed  as  intending  to  confer  all  the  usual  means  or 
sanction  the  usual  manner  of  performing  what  is  intrusted  to  the 
agent.  10  Wendell,  218;  Howard  vs.  Baillie,  2  H.  Bl.  618;  Story 
on  Agency,  p.  58;  Daivson  vs.  Lately,  5  Es.  Ca.  65;  Bkins  vs. 
Maclish,  Ambler,  186;  Salk.  283;  Jeffrey  vs.  Bigelow,  13  Wend. 
(N.  Y.)  527;  28  Am.  Dec.  476;  6  Cowen,  (N.  Y.)  359.     Nor  is  the 


Chap.  Ill]  Leeoy  vs.  Beaed.  385 

power  confined  merely  to  nsnal  "  modes  and  means/*  but  whether 
the  agency  be  special  or  general,  the  attorney  may  use  appropri- 
ate modes  and  reasonaWe  modes;  such  are  considered  within  the 
scope  of  his  authority.  6  Hill,  (N.  Y.)  338;  2  Pick.  Mass.  345; 
Bell  on  Com.  L.  410;  2  Kent's  Com.  618;  Vanada  vs.  Hopkins, 
1  J.  J.  Marsh,  (Ky.)  287,  19  Am.  Dec.  92;  Sandford  vs.  Handy, 
23  Wendell,  (N.  Y.)  268.  We  have  already  shown  that,  under  all 
the  circumstances,  a  covenant  of  warranty  here  was  not  only  usual, 
but  appropriate  and  reasonable. 

Again,  "All  powers  conferred  must  be  construed  with  a  view  to 
the  design  and  object  of  them."  1  J.  J.  Marsh,  287.  Here,  that 
design  was  manifestly  in  the  discretion  of  the  agent,  to  sell  as  he 
might  deem  most  advantageous.  Again,  if  a  construction  be  in 
some  doubt,  not  only  may  usage  be  resorted  to  for  explanation 
(Story  on  Agency,  p.  73;  5  D.  &  E.  564),  but  the  agent  may  do 
what  seems  from  the  instrument  plausible  and  correct,  and  though 
it  turns  out  in  the  end  to  be  wrong,  as  understood  by  the  principal, 
the  latter  is  still  bound  by  the  conduct  of  the  agent.  Lomax  vs. 
Cartwright,  3  Wash.  C.  C.  151;  2  lb.  133;  4  lb.  551;  6  Oowen, 
358,  in  Andreius  vs.  Kneeland.  Because  the  person  who  deals 
with  the  agent  is  required,  like  him,  to  look  to  the  instrument  to 
see  the  extent  of  the  power  (7  Barn.  &  Cres.  278;  1  Peters,  290); 
and  if  it  be  ambiguous,  so  as  to  mislead  them,  the  injurious  con- 
sequences should  fall  on  the  principal,  for  not  employing  clearer 
terms.  2  Barn.  &  Aid.  143,  in  Baring  vs.  Corric;  1  Peters,  (U. 
S.)  290;  Courcier  vs.  Ritter,  4  Wash.  0.  0.  651;  23  Wend.  268. 

In  the  next  place,  the  acts  of  the  parties  themselves,  tend  here  to 
strengthen  the  construction  of  the  words  in  the  power,  so  as  to 
authorize  a  warranty,  and  these  acts,  it  is  competent  to  consider  in 
order  to  remove  doubt.  17  Pick,  222;  1  Metcalf,  378;  Paley  on 
Agency,  198;  Mechanics*  Banlc  of  Alexandria  vs.  BanTc  of  Colum- 
bia,  5  Wheat.  (U.  S.)  326;  and  Bac.  Abr.  Covenant,  F.;  5  D.  &  E. 
564;  1  Greenleaf  on  Ev.  §  293. 

The  agents'  acts  on  this  subject  are  strong.  He  construed  the 
instrument  as  if  empowering  him  to  make  the  warranty,  and  made 
it  accordingly.  He  was  to  gain  nothing  for  himself  by  such  a 
course,  if  wrong,  and  does  not  appear  to  have  done  it  collusively 
with  anybody.     2  Bro.  ch.  638. 

The  principal,  too,  when  asked  for  redress,  and  when  correspond- 
ing on  the  subject,  does  not  appear  to  have  set  up  as  a  defense,  that  he 
25 


386  Cases  on  Agency.  [Book  II 

did  not  intend,  by  this  instrument,  to  anthorize  a  conveyance  with 
warranty.  On  the  contrary,  for  some  time  he  conducted  himself 
towards  both  the  agent  and  the  plaintiff  as  if  he  had  meant  cove- 
nants should  be  made.  14  Johns.  238;  All  Saints  Church  vs. 
Lovett,  1  Hall,  191. 

Finally,  the  decided  cases  on  this  question,  though  in  some 
respects  contradictory,  present  conclusions  as  favorable  to  this 
construction  as  do  the  peculiar  language  used  in  the  power  and 
the  weight  of  analogy.  See  23  Wendell,  260,  267,  268;  Nelson  vs. 
Cowing,  6  Hill,  336;  Vanada  vs.  Hophins,  1  J.  J.  Marsh,  293; 
13  Wendell,  521,  Semlle. 

Some  earlier  cases  were  contra.  Nixon  vs.  Hyserott,  5  Johns. 
(N.  Y.)  58;  Van  Eps  vs.  Schenectady,  12  Johns.  (N.  Y.)  436,  and 
Ketchnm  vs.  Evertson,  13  Johns.  365;  7  Johns.  390. 

But  in  these  the  power  was  merely  to  give  a  deed  of  a  certain 
piece  of  property,  and  could  be  construed  as  it  was  without 
directly  impugning  our  views  here;  whereas,  in  the  present  case, 
the  power  was  manifestly  broader  in  terms  and  design.  Wilson  vs. 
Troup,  2  Cowen  (N.  Y.)  195,  14  Am.  Dec.  458;  6  Cowen,  357. 

The  earlier  cases  in  New  York,  bearing  on  this  subject  are  also 
considered  by  its  own  courts  as  overruled  by  the  later  ones. 
Bronson,  J.,  in  6  Hill,  336. 

It  may  be  proper  to  add,  that  the  general  conclusions  to  which 
we  have  arrived  are  more  satisfactory  to  us,  if  not  more  right, 
because  they  accord  with  what  appears  to  be  the  justice  of  the 
case,  which  is,  that  the  plaintiff  should  not  keep  money  which 
would  probably  not  have  been  obtained  except  by  these  very  cove- 
nants, and  which  it  must  be  inequitable,  therefore,  to  retain  and 
at  the  same  time  avoid  the  covenants. 

The  judgment  below  is  affirmed. 

NOTK  — In  Schultz  vs.  Oriffln,  (1890)  121  New  York,  294,  it  is  said:  "  The 
rule  that  an  agent  to  sell  personal  property  has  implied  power  to  warrant, 
in  the  absence  of  any  restriction,  where  sale  with  warranty  is  usual  and 
customary  in  similar  cases,  was  declared  in  Nelson  vs.  Cowing,  6  Hill,  336, 
substantially  overruling  Gibson  vs.  Colt,  7  Jolms.  490.  There  seems  to  be 
no  well-founded  distinction  between  real  and  personal  property,  requiring 
a  different  construction  of  an  agency  for  sale  in  the  two  cases.  The  great 
preponderence  of  authority  now  is  tliat  a  power  without  restriction  to  sell 
and  convey  real  estate  gives  authority  to  the  agent  to  deliver  deeds  with 
general  warranty  binding  on  the  principal,  where,  under  the  circumstances, 
this  is  the  common  and  usual  mode  of  assurance.   LeRoy  vs.  Beard,  8  How. 


Chap.  Ill]  Leeoy  vs.  Beaed.  387 

(U.  S.)  451;  Peters  v.  Farnsworth,  15  Vt.  155,  post  p.  387;  Vanada  vs.  Hop- 
kins, 1  J.  J.  Marsh,  293;  Taggart  vs.  Stanberry,  2  McLean,  543;  Eawle  on 
Gov.  §  20,  note." 


(15  Veemont,  155,  40  Am.  Deo.  671.) 

PETERS  vs.  FARNSWOETH. 
(Supreme  Court  of  Vermont,  January,  18^.) 

Case.  Defendant,  acting  as  attorney  of  Cadwallader  and  Astley, 
conveyed  to  plaintiff  a  certain  lot  of  land,  with  covenants  of  war- 
ranty and  Beizin,  Subsequently  plaintiff  was  evicted  by  title  par- 
amount. He  now  brought  an  action  on  the  case,  alleging  in  his 
declaration  that  defendant  had  falsely  represented  himself  as  pos- 
sessed of  authority  to  bind  Cadwallader  and  Astley  by  deed  with 
covenants  of  warranty,  and  thereby  deceived  and  misled  him. 
Defendant  introduced  in  evidence,  after  plaintiff  had  rested,  the 
power  of  attorney  under  which  he  acted.  The  operative  clause 
will  be  found  set  forth  at  large  in  the  opinion.  The  court  below 
was  of  the  opinion  that  the  power  of  attorney  was  insufficient  to 
authorize  the  execution  of  the  deed  with  covenants  of  warranty. 
Plaintiff  had  a  verdict. 

H.  R.  &  J.  J.  BeardsUy,  for  the  defendants. 

Smalley  and  Adams,  contra. 

By  the  court,  Williams,  C.  J.  Exceptions  were  taken  to  the 
decision  of  the  county  court  by  both  plaintiff  and  defendant.  The 
exception  taken  by  the  plaintiff  is  to  the  rule  of  damages  laid  down 
by  the  court.  Those  taken  by  the  defendant  involve  the  inquiry 
whether  the  plaintiff  can  maintain  any  action  against  the  defend- 
ant on  the  facts  appearing  in  the  case;  and  this  depends  on  the 
construction  to  be  given  to  the  letter  of  attorney  from  Cadwallader 
and  Astley  to  the  defendant,  for  if  that  letter  of  attorney  author- 
ized him  to  execute  the  conveyance  to  the  plaintiff,  with  the  cove- 
nant of  warranty,  the  suit  of  the  plaintiff  fails. 

In  certain  sales  of  personal  property,  the  agent  who  is  empowered 
to  sell,  is  autliorized  to  give  a  warranty  of  the  soundness  of  the 
article  sold,  on  the  ground,  as  was  said  by  Lord  Ellenborouqh, 
Alexander  vs.  Gibson,  2  Camp.  555,  that,  as  it  is  now  usual,  on  the 
eale  of  horses,  to  require  a  warranty,  the  agent  may  fairly  be  pre- 


388 


Cases  on  Agency.  [Book  II 


snmed  to  be  acting  within  the  scope  of  his  authority.     Were  we 
without  the  authority  of  any  adjudged  case  upon  the  subject,  I 
should  strongly  incline  to  the  opinion,  that,  inasmuch  as  it  is  usual 
and  customary  to  insert  covenants  in  most  deeds  of  conveyance,  more 
or  less  restricted,  as  the  interest  of  grantor  may  require,  a  letter  of 
attorney,  authorizing  any  one  to  sell,  and  to  execute  deeds  or  assur- 
ances, would  authorize  the  inserting  in  the  deed  or  assurance  any 
such  reasonable  covenants  as  are  usual  in  such  deeds,  limited  only 
by  the  discretion  of  the  attorney.     And  it  appears  to  me  that  such 
a  principle  was  recognized  in  the  case  of  Wilson  vs.  Troup,  2  Cow. 
(N.  Y.)  195,  14  Am.  Dec.  458,  where  it  was  holden,  that  under  a 
power  to  mortgage,  the  agent  was  authorized  to  insert  a  power  to 
sell,  on  default  of  payment.      It  is  true,  it  was  holden  in  the  case 
of  Coles  vs.  Kinder,  Cro.  Jac.   571,  that  on  a  promise  to  make 
reasonable  assurance  of  land,  the  defendant  was  not  bound  to  exe- 
cute a  conveyance  with  ordinary  and  reasonable  covenants;  but  in 
the  case  of  Laffels  vs.  Catterton,  reported  in  1  Mod.  67,  and  in 
Raym.  190,  it  was  said  by  Twisden  that  the  law  is  altered  since  the 
Coles  and  Kinder  case,  as  to  covenants  in  a  conveyance  if  they  be 
reasonable. 

It  appears  to  me  it  would  but  be  extending  the  principle  of  the 
latter  case  to  the  present,  to  say  that,  under  a  promise,  or  under  a 
power  of  attorney  to  sell  and  deed,  a  deed  with  a  covenant  to 
secure  the  title,  such  as  is  usual,  should  be  required.  The  court 
of  appeals  in  Kentucky  have  decided  that  a  power  to  sell  lands 
includes  an  authority  to  convey  with  covenants  of  general  war- 
ranty. Vanada  vs.  Hophijis,  1  J.  J.  Marsh,  293,  19  Am.  Dec.  92. 
The  case  of  Nixon  vs.  Hyserott,  5  Johns.  (N.  Y.),  58,  is,  however, 
opposed  to  this  view;  and  the  authority  of  the  latter  case  is  recog- 
nized both  in  7  and  12  Johns,  and  2  Cowen.  Upon  this  subject  it  is 
very  desirable  that  the  law  should  be  considered  the  same  in  the  dif- 
ferent states.  In  the  case  of  Nixon  vs.  Hyserott,  it  is  to  bo  observed 
that  the  letter  of  attorney  authorized  the  attorney  "to  grant, 
bargain,  sell,  release,  convey  and  confirm  in  fee,''  to  any  person, 
certain  specified  lots,  and  that  these  are  the  operative  words  made 
use  of  in  the  granting  part  of  a  deed,  and  had  no  reference  to  the 
species  of  conveyance  which  the  attorney  might  adopt.  The  further 
words,  "to  execute,'*  etc.,  "such  conveyances,  assurances,"  etc., 
neither  enlarged,  extended,  nor  limited  the  authority  first  given, 
but  only  left  it  to  the  attorney  to  adopt  such  conveyance  as,  in  his 
judgment,  might  be  needful  to  transfer  the  title.     The  letter  of 


Chap.  Ill]  Petees  vs.  Farnswoeth.  389 

attorney  gave  no  other  authority,  except  to  sell  and  execute  such 
deeds  as  the  attorney  might  thinlc  necessary  to  effectuate  the  sale. 
It  was  so  treated  in  the  cases  of  Gibson  vs.  Colt,  7  Johns.  (N.  Y.), 
390,  and  in  Van  Eps  vs.  Schenectady,  12  Id.  436,  7  Am.  Dec.  330, 
where  the  case  was  mentioned. 

In  the  case  before  us,  the  letter  of  attorney  to  the  defendant 
authorized  him  to  do  all  that  was  necessary  in  relation  to  certain 
tracts  of  land  in  Bakersfield  and  Fairfax  to  obtain  possession,  and 
to  "  sell  for  the  best  prices,  either  by  public  auction  or  private  con- 
tract, as  he  might  think  most  advantageous.  And  upon  sale 
thereof,  or  any  part  thereof,  and  on  receipt  of  the  money  arising 
from  such  sale  or  sales,  to  give  sufficient  releases,  acquittances,  and 
discharges  for  the  same,  and  to  sign,  seal,  and  execute  all  or  any 
such  contracts,  agreements,  conversances  and  assurances,  and  to  do 
and  perform  all  such  acts  and  things  for  perfecting  such  sale  or 
sales  thereof,  or  any  part  thereof,  as  shall  be  requisite  and  necessary 
in  that  behalf."  Under  this  letter  of  attorney  he  was  bound  to 
make  such  contracts  as  would  be  most  advantageous  to  his  princi- 
pals, and  to  obtain  the  best  prices,  and  was  authorized  to  make 
such  contracts  or  agreements — which  if  under  seal  would  be  cove- 
nants— as  were  requisite;  and  could  bind  his  principals  thereby. 
He  could  bind  them  to  make  a  good  title  by  warranty  deed,  or  other- 
wise. The  authority  was  plenary  to  bind  the  principals  by  a  con- 
tract, covenant  or  agreement,  to  secure  the  title  to  the  purchaser, 
and  he  could  execute  a  deed,  conveyance  or  assurance,  with  such 
covenants  as  were  necessary  to  procure  the  best  prices  and  most 
advantageous  terms  of  sale.  We  think,  therefore,  that  under  this 
letter  of  attorney  he  was  fully  authorized  to  execute  the  deed  to 
the  plaintiff  with  the  covenants  therein  contained,  and  by  such 
covenants  Cadwallader  and  Astley  were  obligated  to  assure  the  title, 
and  the  defendant  did  not  exceed  his  authority  and  was  not  liable 
in  this  action. 

The  judgment  of  the  county  court  is  reversed. 

Note.— See  Kroeger  va.  Pitcaim,  post,  p.  — ;  Simmons  vs.  More,  post, 
p. — , 


390  Cases  on  Agency.  [Book  II 

(  5  Heiseell^  555.) 

LUMPKIN  vs.  WILSON. 

(Supreme  Court  of  Tennessee,  June,  1871.) 

Bill  in  chancery  by  Lnmpkin  to  have  perfected  his  title  to  a  lot 
of  ground  bought  by  him  of  one  James  Wilson,  an  agent  of  the 
owners,  Mrs.  Keene  and  Mrs.  Talbot.  There  was  a  cross-bill  to  set 
aside  the  conveyance. 

Humes,  Posfon  S   Webb,  for  complainant. 
Ustes  <£  Jackson,  for  defendants. 

Sneed,  J.  (After  stating  the  facts.)  In  hia  original  bill  com- 
plainant states  that  the  interests  of  Mrs.  Keene  and  Mrs.  Talbot  in 
the  lot  were  paid  for  by  selling  and  delivering  to  James  Wilson  a 
stock  of  goods,  wares  and  merchandise,  and  in  his  answer  to  the 
cross-bill,  he  repeats  the  substance  of  his  original  bill.  The  first 
question  presented  on  these  facts  is,  whether  the  power  of  attorney 
anthoi-ized  the  agent  to  convey  the  lot  for  goods,  wares  and  merch- 
andise? And  the  answer  to  this  depends  upon  the  question, 
whether  he  was  thereby  constituted  a  general  or  a  special  agent. 
The  power  conferred  was,  **  to  bargain,  sell,  alien,  enfeoff,  transfer, 
and  convey,  by  deed  in  fee  simple,*'  etc.,  and  *'  to  do  and  perform 
any  and  all  acts  and  deeds  necessary  to  be  done,  in  and  about  the 
premises."  The  agency  was  clearly  special.  It  was  confined  to 
selling  and  conveying  the  lot.  There  were  no  directions  or  instruc- 
tions beyond  the  selling  and  conveying,  and  the  doing  of  such 
things  as  might  be  necessary  to  carry  out  the  power.  Under  this 
power  the  agent  had  no  right  to  sell  and  convey  for  any  other  con- 
sideration than  for  money.  Harrold  vs.  Oillespie,  7  Humph. 
(Tenn.)  57;  Baldtvin  vs.  Merrill,  8  Id.  132;  Kenny  vs.  Hazeltine, 
6  Id.  62. 

The  agency  being  special,  the  power  is  to  be  strictly  construed. 
This  is  the  settled  rule  in  the  construction  of  powers  of  attorney, 
and  the  principal  cannot  be  bound  beyond  the  limits  prescribed 
by  himself.     Bank  of  Mobile  vs.  Andrews,  2  Sneed,  (Tenn.)  540. 

The  distinction  between  a  general  and  special  agent  is  laid  down 
with  clearness  by  Judge  Kent,  Com.  vol.  2,  806.  lie  says:  **  The 
special  authority  must  be  strictly  pursued.  Whoever  deals  with 
an  agent  consticuted  for  a  special  purpose,  deals  at  his  peril  when 
the  agent  passes  the  precise  limits  of  his  power." 


Chap.  Ill]  Lumpkin  vs.  Wilson.  891 

lu  the  case  before  us,  the  complainant  says  he  examined  care- 
fully the  power  of  attorney,  and  had  it  examined  by  his  legal 
adviser,  and  that  he  made  the  purchase  upon  his  own  judgment 
and  that  of  his  legal  adviser  that  the  agent  hud  power  to  sell  the 
lot  for  goods,  wares  and  merchandise.  He  acted  at  his  own  peril, 
and  got  no  title  to  the  lot,  unless  the  act  of  the  agent  was  after- 
wards ratified  and  confirmed  by  the  principal.  *  ♦  ♦  ^  The 
court  further  held  that  no  ratification  had  been  shown.) 

Complainant's  bill  dismissed,  and  decree  for  complainants  in  the 
cross-bill. 

NOTK. — That  power  to  sell  land  confere  no  power  to  sell  on  credit,  see, 
also,  School  District  va.  ^tna  Insurance  Co.,  ante,  p.  194. 


II. 
OP  AGENT  AUTHOBIZED  TO   SELL   PERSONAL   PROPEETY. 


(58  Maryland  305,  42  Air.  Eep.  332.) 

LEVI    vs.    BOOTH. 

(Court  of  Appeals  of  Maryland,  April,  1882.) 

Teovee.  The  opinion  states  the  case.  The  plaintiff  had  judg- 
ment below. 

Rolert  D.  Morrison,  for  appellants. 
Oeo.  Hawkins  Williams,  for  appellee. 

Alvey,  J.  In  this  case  it  appears  that  the  plaintiff  was  the  owner 
of  a  valuable  diamond  ring,,  and  he  placed  it  in  the  hands  and  pos- 
session of  a  party  by  the  name  of  De  Wolff,  a  dealer  and  trader  in 
jewelry,  for  the  purpose  of  obtaining  a  match  for  it,  or  failing  in 
that  to  get  an  offer  for  it;  and  there  is  nothing  in  the  proof  to  show 
that  it  was  given  into  the  possession  of  De  Wolff  for  any  other  pur- 
pose, or  that  he  was  in  any  manner  authorized  to  sell  it. 

The  defendants  were  pawnbrokers  and  dealt  in  articles  of  jewelry. 
De  Wolff  dealt  with  them  and  made  purchases  on  credit,  and  settled 
from  time  to  time;  and  among  the  articles  of  jewelry,  he  purchased 
diamond  rings,  earrings,  studs,  watches,  etc.,  and  became  consider- 
ably indebted  to  the  defendants.     He  appears  to  have  been  a  sort  of 


392  Cases  on  Agency.  [Book  II 

street  peddler  of  articles  of  Jewelry — going  from  place  to  place  and 
disposing  of  his  articles  on  the  best  terms  he  could  make.  He  had 
no  shop  or  established  place  of  business. 

On  the  part  of  the  defendants  the  evidence  tended  to  show  that 
DeWollI  sold  the  ring  to  Henry  Levi,  one  of  the  defendants,  for  a 
certain  price — part  paid  in  cash  and  the  other  part  in  goods.  But 
on  the  part  of  the  plaintiff,  proof  was  given  that  before  such  alleged 
sale,  Henry  Levi  had  been  informed  that  the  ring  belonged  to  the 
plaintiff,  and  that  DeWolff  had  no  power  or  authority  to  sell  it. 
DeWolff,  as  witness,  proved  that  he  left  the  ring  with  Henry  Levi 
to  obtain  an  offer  for  it,  but  with  no  authority  to  sell  it;  while  on 
the  other  hand,  Henry  Levi  testified  that  he  purchased  the  ring  of 
DeWolff,  supposing  him  to  have  been  the  real  owner  of  it.  It  was 
also  proved  by  the  admission  and  statement  of  Henry  Levi,  when 
demand  was  made  of  the  defendants  by  the  plaintiff  for  the  ring, 
that  the  ring  had  been  sold  to  some  person  whose  name  he  did  not 
know  or  could  not  furnish. 

/    The  plaintiff  brought  his  action  in  trover  for  the  conversion  of 
I  the  ring,  and  recovered  a  verdict  and  judgment  for  the  supposed 
value  thereof. 

At  the  trial,  upon  the  evidence  offered,  the  plaintiff  submitted 
two  prayers  for  instruction  to  the  jury,  and  they  were  both  granted, 
and  the  defendants  submitted  six  prayers,  all  of  which  were  refused; 
and  to  the  ruling  of  the  court  in  respect  to  these  several  prayers 
the  defendants  excepted. 

Upon  these  prayers  thus  submitted,  three  principal  questions  are 
presented: 

1.  Supposing  it  to  be  true,  as  contended  by  the  defendants,  that 
DeWolff  did  sell  the  ring  to  Henry  Levi,  one  of  the  defendants,  as 
if  he  were  the  owner  thereof,  when  in  fact  he  was  not  the  owner, 
and  had  no  express  authority  to  sell  it,  whether  under  the  facts 
disclosed  in  the  evidence,  such  sale  was  good  and  effective  at  the 
common  law  as  between  the  defendants  and  the  real  owner? 

2.  If  not,  whether  such  sale  was  good  and  effective  in  view  of 
the  facts  disclosed,  as  between  the  real  owner  of  the  ring  and  the 
defendants  under  the  provisions  of  what  is  known  as  the  Factor's 
Act,  Code,  art.  3,  §  4? 

3.  If  neither  of  the  defendants  acquired  title  to  the  ring,  whether 
under  the  facts  of  the  case,  there  was  such  conversion  thereof  by 
the  defendants,  or  one  of  them,  as  would  entitle  the  plaintiff  to 
recover? 


Chap.  Ill]  Levi  vs.  Booth.  393 

1.  It  is  certainly  a  well-established  principle  of  the  common  law, 
founded  as  it  would  seem  upon  a  maxim  of  the  civil  law,  nemo  plus 
juris  in  alium  transferre  puted  quam  ipse  habei,  that  a  sale  by  a 
person  who  has  no  right  or  power  to  sell  is  not  effective  as  against 
the  rightful  owner.  Sales  made  in  market  overt  were  an  exception 
to  this  general  rule;  but  the  old  Saxon  institution  of  market  overt 
has  never  been  recognized  in  this  state,  nor,  as  far  as  we  are 
informed,  in  any  of  the  United  States.  Broiuning  vs.  Magill,  2  H. 
&  J.  308;  Moiorey  vs.  Walsh,  8  Cow.  238;  Dame  vs.  Baldwin,  8 
Mass.  518;   Ventress  vs.  Smith,  10  Pet.  175. 

At  common  law,  therefore,  a  person  in  possession  of  goods  can- 
not confer  upon  another,  either  by  sale  or  pledge,  any  other  or 
better  title  to  the  goods  than  he  himself  has.  To  this  general 
rule  there  is  an  apparent  exception  in  favor  of  lonafidc  purchasers 
or  pledgees,  where  the  party  in  possession  making  the  sale  or 
pledge  has  a  title  defeasible  on  account  of  fraud,  or  by  reason  of  a 
condition  in  the  contract  of  sale  under  which  he  holds.  Hall  vs. 
Hinhs,  21  Md.  406;  Donaldson  vs.  Fanvell,  93  U.  S.  631.  There- 
fore, to  make  either  a  sale  or  pledge  valid  as  against  the  real 
owner,  where  the  sale  or  pledge  is  made  by  another  person,  it  is 
incumbent  upon  the  person  claiming  under  such  sale  or  pledge  to 
show  that  the  party  making  it  had  authority  from  the  owner. 
Cole  vs.  Korthtuestern  Bank,  L.  R.,  10  C.  P.  354,  363;  Johnson 
vs.  Credit  Lyonnais,  2  C.  P.  Div.  224,  affirmed  on  appeal,  3  Id. 
32.  If,  however,  the  real  owner  of  the  goods  has  so  acted  as  to 
clothe  the  seller  or  pledgor  with  apparent  authority  to  sell  or 
pledge,  he  will  even  by  the  common  law  be  precluded  from  deny- 
ing, as  against  those  who  may  have  acted  bona  fide  on  the  faith  of 
that  apparent  authority,  that  he  had  given  such  authority,  and  the 
result  as  to  them  is  the  same  as  if  he  had  really  given  it;  but  it  is, 
of  course,  otherwise  in  respect  to  those  who  may  have  acted  with 
notice  of  the  want  or  limitation  of  authority  in  point  of  fact. 

This  principle  of  estoppel,  as  applied  to  sales  or  pledges  of  goods 
or  merchandise,  is  aptly  and  completely  illustrated  in  the  familiar 
and  often  cited  case  of  Pickering  vs.  Busk,  15  East,  38.  The  case 
was  decided  before  the  passage  of  any  of  the  English  Factor  Acts, 
and  the  facts  were  that  the  true  owner  had  bought  parcels  of  hemp 
through  Swallow,  who  was  a  broker  and  an  agent  for  sale.  At 
the  instance  and  request  of  the  plaintiff,  the  real  owner,  the  hemp 
was  transferred  on  the  books  of  the  wharfinger  from  the  name  of 
the  seller  to  that  of  Swallow,  who  without  express  authority  from 


394  Cases  oh  Agency.  [Book  II 

the  owner  afterwards  sold  it.  In  an  action  of  trover  by  the  real 
owner,  to  recover  for  the  conversion  of  the  hemp  thus  sold,  it  was 
held  that  the  transfer  on  the  books  of  the  wharfinger  by  the 
direction  of  the  plaintiff  to  the  name  of  Swallow  authorized  the 
latter  to  deal  with  th€  hemp  as  owner  with  respect  to  third  persons, 
and  that  the  plaintiff,  who  had  thus  enabled  Swallow  to  assume 
the  appearance  of  ownership  to  the  world,  should  abide  the  conse- 
quences of  his  own  act.  Lord  Ellenborough  said:  "  It  cannot 
fairly  be  questioned  in  this  case  but  that  Swallow  had  an  implied 
authority  to  sell.  Strangers  can  only  look  at  the  acts  of  the  parties, 
and  to  the  external  indicia  of  property  and  not  to  the  private  com- 
munications which  may  pass  between  a  principal  and  his  broker; 
and  if  a  person  authorize  another  to  assume  the  apparent  right  of 
disposing  of  property  in  the  ordinary  course  of  trade  it  must  be 
presumed  that  the  apparent  authority  is  the  real  authority.''  And 
in  conclusion  he  said:  '*  The  sale  was  made  by  a  person  who  had 
all  the  indicia  of  property;  the  hemp  could  only  have  been  so 
transferred  into  his  name  for  the  purposes  of  sale,  and  the  party 
who  has  transferred  it  cannot  now  rescind  the  contract.  If  the 
plaintiff  had  intended  to  retain  the  dominion  over  the  hemp,  he 
should  have  placed  it  in  the  wharfinger's  books  in  his  own  name." 

The  same  principle,  though  applied  in  a  case  quite  different  in 
its  circumstances,  was  adopted  by  this  court  in  the  case  of  Lister 
vs.  Allen,  31  Md.  543.  And  in  the  recent  English  cases  of  Cole  vs. 
Northwestern  Bank,  L.  E.,  10  C.  P.  Ex.  Ch.  354;  Johnson  vs. 
The  Credit  Lyonnais,  3  0.  P.  Div.  224,  affirmed  on  appeal,  3  Id. 
32;  and  City  Banh  vs.  Barrow,  5  App.  Cas.  H.  L.  664,  the  same 
principle  with  its  proper  limitations  was  fully  expounded,  both  as 
it  exists  at  the  common  law,  independently  of  statute,  and  as  it  has 
been  modified  by  what  is  known  as  the  Factors'  Acts;  and  those 
cases  fully  and  clearly  maintain  the  principles  we  have  stated. 

In  this  case  there  is  no  evidence  that  there  was  any  express 
authority  by  the  plaintiff  to  DeWolff  to  sell  the  ring,  though  there 
is  evidence  that  DeWolff  was  authorized  to  procure  an  offer  for  it. 
This  of  course  reserved  to  the  plaintiff  the  right  to  accept  or  reject 
the  offer  if  one  was  made.  With  this  limitation  of  authority  there 
can  be  no  question  of  the  principle  propounded  in  the  plaintiff's 
first  prayer;  for  that  goes  ujDon  the  hypothesis  that  there  was  no 
sale  in  fact  to  Levi,  but  that  the  ring  was  simply  left  with  the 
defendants,  and  that  they  afterwards  without  other  authority  sold 
it.     If  it  be  true  that  there  was  no  sale  to  the  defendants,  or  one 


Chap.  Ill]  Levi  vs.  Booth.  395 

of  them,  and  that  they,  simply  having  the  possession  and  without 
authority  for  so  doing,  sold  or  disposed  of  the  ring,  it  is  clear  they 
were  wrongdoers,  and  therefore  liable  for  the  conversion.  This 
was  the  theory  and  principle  upon  which  the  plaintifi's  case  appears 
to  have  been  presented  in  the  court  below. 

2.  But  on  the  part  of  the  defendants  the  case  was  presented  in 
a  different  aspect.  According  to  the  theory  of  the  fourth,  fifth 
and  sixth  prayers  of  the  defendants,  there  was  a  sale  by  De  Wolf 
to  the  defendants,  or  one  of  them,  and  the  court  was  asked  by  the 
fourth  and  fifth  prayers  to  instruct  the  jury  that  if  they  found 
that  De  WolU  was  a  dealer  in  jewelry,  and  with  knowledge  of  that 
fact  the  plaintiff  intrusted  him  or  intrusted  him  as  agent  with  the 
possession  of  the  diamond  ring,  and  thereby  put  it  in  his  power  to 
act  as  apparent  owner  thereof,  and  that  the  defendants  acted  upon 
the  faith  of  such  apparent  ownership,  and  purchased  the  ring  for 
value  and  without  notice  of  the  ownership  of  plaintiff,  then  the 
plaintiff  could  not  recover. 

The  sixth  prayer  proposed  to  submit  to  the  jury  to  find  whether 
the  ring  had  not  been  delivered  or  intrusted  to  De  Wolff  by  the 
plaintiff,  with  authority  to  sell  or  dispose  of  it  under  certain  limi- 
tations as  to  price.  But,  as  we  have  already  said,  there  was  no 
evidence  of  such  authority  being  delegated  to  De  Wolff  and  the 
court  therefore  would  not  have  been  justified  in  submitting  that 
question  to  the  jury.  That  prayer,  therefore,  was  properly 
refused. 

But  with  respect  to  the  propositions  involved  in  the  fourth  and 
fifth  prayers,  other  and  different  considerations  are  presented. 

Independently  of  the  provisions  of  the  statute  in  regard  to  the 
dealings  with  agents  and  factors,,  it  is  very  clear,  upon  the  princi- 
ciples  that  we  have  already  stated,  that  the  bare  possession  of  goods 
by  one,  though  he  may  happen  to  be  a  dealer  in  that  class  of  goods, 
does  not  clothe  him  with  power  to  dispose  of  the  goods  as  though 
he  were  owner,  or  as  having  authority  as  agent  to  sell  or  pledge  the 
goods,  to  the  preclusion  of  the  right  of  the  real  owner.  If  he  sells 
as  owner  there  must  be  some  other  indicia  of  property  than 
mere  possession.  There  must,  as  in  the  case  of  Pickering  vs.  Busk, 
supra,  and  more  fully  expounded  and  illustrated  in  Jolinsoii  vs. 
The  Credit  Lyonnais,  supra,  be  some  act  or  conduct  on  the  part 
of  the  real  owner  whereby  the  party  selling  is  clothed  with  the 
apparent  ownership,  or  authority  to  sell,  and  which  the  real  owner 
will  not  be  heard  to  deny  or  question  to  the  prejudice  of  an  inno- 


396  Cases  on  Agency.  [Book  II 

cent  third  party  dealing  on  the  faith  of  such  appearances.  If  it 
were  otherwise,  people  would  not  be  secure  in  sending  their  watches 
or  articles  of  jewelry  to  a  jeweler's  establishment  to  be  repaired,  or 
cloth  to  a  clothing  establishment  to  be  made  into  garments.  If 
De  Wolff,  instead  of  being  a  mere  peddler  of  jewelry,  had  occupied 
a  shop  where  he  carried  on  the  business  of  a  jeweler,  and  the  ring 
had  been  left  with  him,  either  to  be  mended,  or  reset,  or  to  be 
exposed  to  inspection  in  order  to  procure  an  offer  for  it,  without 
any  authority  to  sell  it,  we  suppose  it  to  be  clear,  that  the  owner 
could  not  have  been  divested  of  his  property  by  an  unauthorized  sale 
by  the  jeweler  under  such  circumstances.  And  if  he  could  not  be 
divested  of  his  property  by  sale  under  such  circumstances,  we  do 
not  perceive  how  the  present  case  could  be  distinguished,  in  prin- 
ciple, from  that  just  stated.     (Omitting  the  other  questions.) 

Upon  the  whole  record  we  find  no  error  in  any  of  the  rulings 
excepted  to,  and  we  must  therefore  affirm  the  judgment. 

Judgment  affirmed. 


(105  New  Yoek,  283,  59  Am.  Rep.  502.) 

SMITH  vs.  CLEWS. 

(New  York  Court  of  Appeals,  April,  1887.) 

Action  to  recover  personal  property.  The  opinion  states  the 
case.     The  plaintiff  had  judgment  below. 

Albert  A.  Abbott,  for  appellant. 
Charles  H.  Woodbury,  for  respondent. 

Peckham,  J.  This  is  an  action  under  the  code  to  obtain  the 
delivery  of  personal  property  alleged  to  belong  to  plaintiffs  and  to 
be  wrongfully  withheld  by  defendant.  The  plaintiffs  had  a  verdict 
which  was  affirmed  at  General  Term,  and  the  defendant  has 
appealed  here.  The  plaintiffs  claimed  to  be  the  owners  of  what 
they  called  a  pair  of  diamond  ear-knobs,  of  the  value  of  $1,400, 
which  came  into  the  possession  of  defendant,  as  shown  by  the 
evidence  in  the  following  manner. 

Elijah  Miers  was  a  dealer  in  diamonds  in  New  York.  His 
business  was  to  procure  diamonds  from  the  larger  dealers  and  sell 
them  to  his  customers.     Before  the  13th  of  January,  1879,  he  had 


Chap.  Ill  ]  Smith  vs.  Clews.  397 

procured  from  an  anthorized  agent  of  tho  plaintiffs  a  pair  of 
diamond  ear-rings  wliich  on  that  day  he  had  sold  to  the  defendant 
for  $300,  and  had  received  the  check  of  defendant,  payahle  to  his 
order  in  payment  therefor. 

Before  the  23d  day  of  January,  1879,  Miers  had  procured  another 
pair  of  ear-rings  from  plaintilfs'  said  agent,  and  sold  them  on  that 
day  to  defendant  for  $450,  receiving  in  payment  the  first  pair  of 
ear-rings  and  the  check  of  defendant  for  the  balance  of  $150. 
Miers  paid  to  plaintiffs'  agent  the  price  of  these  diamonds  after  the 
sale  to  defendant.  The  defendant  had  purchased  them  in  good 
faith  from  Miers,  assuming  him  to  be  the  owner.  He  intended 
the  first  pair  as  a  present  for  his  wife,  but  when  shown  to  her  she 
preferred  a  more  expensive  pair,  and  hence  the  second  purchase. 
These  also  proved  unacceptable,  and  it  was  some  time  after  their 
purchase  by  defendant  before  the  diamonds  in  question  were  pre- 
sented to  him  for  purchase,  he  having  in  the  meantime  kept  the 
Becond  pair,  and  upon  the  purchase  of  the  diamonds  in  question  of 
the  same  man  Miers,  he  gave  back  the  second  pair  and  paid  $650 
in  addition,  thus  making  $1,100,  the  purchase-price  of  these  last 
diamonds. 

There  is  no  question  of  the  lona  fides  of  the  series  of  purchases 
by  the  defendant.  The  evidence  is  uncontradicted  as  to  the  man- 
ner in  which  Miers  obtained  the  last  diamonds  from  the  plaintiffs. 
They  had  delivered  them  to  Plumb,  the  diamond  broker,  who  had 
delivered  the  other  diamonds  to  Miers.  One  of  the  plaintiffs  was 
asked  how  it  happened  that  he  delivered  these  diamonds  to  Plumb, 
and  he  testified  that  he  could  not  say  whether  it  was  at  Miers' 
request  or  not,  but  that  Miers  had  called  on  him  before  he  delivered 
them  to  Plumb  and  had  said  to  him  that  he  had  a  customer  for  a 
pair  of  diamond  ear-knobs,  and  although  the  plaintiff  could  not  say 
that  he  told  Miers  that  he  would  send  him  the  diamonds  through 
Plumb,  yet  he  says  he  stated  to  Plumb  that  he  would  do  so,  and  he 
did  so,  and  authorized  Plumb  to  deliver  the  diamonds  to  Miers  and 
that  that  is  the  way  Miers  got  them.  The  witness  also  said  he 
knew  Miers  had  the  diamonds  in  his  possession  immediately,  that 
they  were  taken  from  the  plaintiffs'  office  and  delivered  to 
Miers  by  Plumb;  they  were  delivered  to  Plumb  on  the  12th  of  April, 
and  by  him  to  Miers  on  that  day.  When  Plumb  delivered  them  to 
Miers  he  took  from  him  a  receipt  in  this  form: 

"New  York,  April  12,  1879. 
**  Received  from  Alfred  H.  Smith  &  Co.  by  their  representative. 


398  Cases  on  Agency.  [Book  II 

B.  "W.  Plnmb,  a  pair  of  single  stone  diamond  earrings  10^  carats, 
of  the  value  of  fonrteen  hundred  dollars,  on  approval  to  show  to 
my  cnstomers,  said  knobs  to  be  returned  to  said  A.  H.  Smith  &  Co. 
on  demand.  '*E.  Miers/' 

Having  thus  become  possessed  of  the  diamonds,  Miers,  as  has 
been  stated,  sold  them  to  defendant,  and  the  question  is,  did  he 
get  a  good  title  as  against  the  plaintiffs? 

Taking  the  undisputed  evidence  and  reading  this  receipt  in  the 
light  thereof,  we  cannot  resist  the  conclusion  that  the  plaintiffs  con- 
ferred upon  Miers  the  power  to  sell  these  diamonds  and  of  course 
to  give  a  good  title,  and  therefore  the  court  should  have  directed  a 
verdict  for  the  defendant. 

The  plaintiffs  were  dealers  in  diamonds  and  they  knew  Miers  and 
that  he  was  engaged  in  the  business  of  a  diamond  dealer — a  seller 
of  the  stones  to  whomever  he  chose. 

They  had  on  two  former  occasions  intrusted,  through  their  agent, 
diamonds  to  Miers,  who  had  sold  them  and  accounted  for  the  pro- 
ceeds of  the  sale  without  any  fault  being  found  so  far  as  appears  on 
account  of  any  lack  of  authority  to  sell. 

They  were  informed  by  Miers  on  this  particular  occasion,  that 
he  had  a  customer  for  a  pair  of  diamond  ear-rings,  and  these  dia- 
monds were  then  intrusted  to  Miers  by  the  plaintiffs,  through  their 
agent.  Plumb.  Upon  taking  them,  Miers  gave  the  receipt  spoken 
of.  Now,  upon  these  facts,  what  other  meaning  can  be  attached 
to  that  receipt  than  that  Miers  had  power  to  take  these  diamonds, 
show  them  to  his  customer,  and  if  approved  of  by  the  customer. 
Bell  them  to  him?  The  fact  that  Miers  agreed  to  return  them  to 
plaintiffs  on  demand,  must  be  construed  with  reference  to  the 
obvious  purpose  for  which  the  diamonds  were  intrusted  to  him, 
viz.:  that  of  a  sale;  and  so  construed,  the  plain  meaning  is  that  if 
not  already  sold,  the  plaintiffs  had  the  right  to  demand  the  return 
of  the  diamonds  any  time,  and  Miers  would  then  be  bound  to 
return  them.  The  information  given  to  plaintiffs,  by  Miers,  that  he 
(Miers),  had  a  customer  for  a  pair  of  diamond  ear-knobs,  is  sus- 
ceptible of  no  other  interpretation  than  that  he  had  a  customer  who 
wanted  to  buy  a  pair.  Under  such  circumstances,  what  could  a 
dealer  in  diamonds  mean  by  intrusting  them  to  another  dealer  who 
had  a  customer  who  wanted  to  buy  them,  and  who  came  to  this 
dealer  for  the  purpose  of  being  supplied  by  him  with  diamonds  of 
a  kind  which  his  customer  wanted  to  buy? 

Enlightened  by  these  facts,  the  interpretation  of  the  receipt 


Chap.  Ill  ]  Smith  vs.  Clews.  399 

signed  by  Miers  is  an  easy  matter.  It  can  mean  nothing  else  than 
an  authority  to  sell  the  stones  to  the  customer  if  they  met  his 
approval,  and  if  not  actually  sold  before  demand  made,  they  should 
be  returned  to  the  plaintiffs  upon  such  demand. 

This  conclusion  as  to  what  was  the  actual  authority  given  to 
Miers  does  not  in  the  least  affect  the  propriety  of  the  decisions  cited 
by  the  counsel  for  the  respondents  and  in  the  opinion  of  the  court 
at  General  Term,  to  the  effect  that  one  intrusted  simply  with  the 
possession  of  personal  property,  with  no  power  to  sell  or  pass  title, 
cannot  give  title  to  the  property  even  to  a  bona  fide  purchaser  for 
value.  The  question  here  is  simply  what  was  the  authority  with 
which  the  man  Miers  was  clothed,  and  upon  the  undisputed  evi- 
dence in  the  case,  we  hold  it  was  an  authority  to  sell. 

The  judgment  of  the  General  Term  and  of  the  circuit  should  be 
reversed,  and  a  new  trial  ordered,  costs  tc  abide  the  event. 

All  concur.  Judgment  reversed. 

NOXB.— bee,  abo,  TowU  vs.  Leavittt  ante,  y.  ibH, 


(55  Wisconsin  515,  42  Am.  Rep.  740.) 

McKINDLY  vs.  DUNHAM. 

^Supreme  Court  of  Wisconsin,  August,  1882. J 

Action  for  price  of  goods.  The  opinion  states  the  facts.  The 
defendant  had  judgment  below. 

Geo.  D.  Waring  and  T.  C.  Ryan,  for  appellant. 
W.  W.  D.  Turner,  for  respondent. 

Orton,  J.  A  short  time  before  August  11,  1879,  one  W.  L. 
Kilbourn  called  upon  the  defendant  at  Berlin,  "Wisconsin,  exhib- 
ited the  cards  of  the  plaintiffs'  house  in  Chicago,  and  solicited  and 
obtained  from  the  defendant  an  order  for  1,000  cigars  of  a  certain 
brand  upon,  and  sent  the  same  to,  the  plaintiffs,  and  the  plaintiffs 
on  that  day  shipped  the  cigars  and  sent  the  bill  thereof  (§;30  at 
sixty  days)  to,  and  they  were  duly  received  by,  the  defendant. 
About  thirty  days  thereafter  the  said  Kilbourn  called  upon  the 
said  defendant  and  asked  him  "  if  he  would  just  as  soon  pay  him 
for  those  cigars  as  not,''  and  the  defendant  replied  "  that  he  would 
as  soon  pay  it  then  as  any  other  time,"  and  paid  the  same,  and 
said  Kilbourn  receipted  the  original  bill  produced  by  the  defend- 


400  Oases  o^f  Agenci.  [Book  II 

ant  in  the  firm  name  of  the  plaintiffs  by  himself.  Kilbonrn's  real 
authority  as  agent  of  the  plaintiffs  was  to  solicit  from  country 
merchants  orders  on  them  for  goods,  and  if  such  orders  were 
accepted  and  filled,  Kilhourn  was  entitled  to  a  small  commission 
thereon.  We  haye  no  evidence  of  what  the  terms  of  this  order 
were,  and  are  left  to  presume  that  it  was  a  mere  order  or  request 
by  the  defendant  to  the  plaintiffs  for  1,000  cigars,  and  perhaps  at 
a  certain  price.  The  main  question  in  the  case  is  the  authority  of 
Kilbourn  to  receive  payment  of  this  bill. 

There  is  no  proof  of  numerous  or  indeed  of  any  other  acts  done 
by  this  agent  of  this  character,  with  the  express  or  tacit  consent  of 
the  plaintiffs,  or  of  any  general  habit  of  dealing,  or  of  any  other 
transaction  between  these  parties  of  any  kind,  or  that  the  real 
scope  of  his  authority  beyond  what  appeared  was  disclosed  at  this 
time.  There  is  nothing  besides  this  one  transaction  from  which 
his  authority  and  the  full  scope  of  his  authority  can  be  implied  or 
inferred.  It  is  his  apparent  or  ostensible  authority  in  this  one  act 
to  do  another  act  of  the  same  kind,  and  nothing  more. 

The  only  question  here  is,  what  was  his  apparent  or  ostensible 
authority  in  this  one  act?  "  His  implied  agency  cannot  be  construed 
to  extend  beyond  the  obvious  purposes  for  which  it  was  apparently 
created.*'  "The  intention  of  the  parties,  deduced  from  the  nature 
and  circumstances  of  this  particular  case,  constitutes  the  true 
ground  of  exposition  of  the  extent  of  his  authority.'*  Story  on 
Agency,  §  87;  Wright  vs.  Hood,  49  Wis.  235.  A  principal  is 
responsible  for  any  act  of  his  agent  which  justifies  a  party  dealing 
with  him  in  believing  that  he  has  given  the  agent  his  authority  to 
do  such  act  (1  Pars,  on  Con.  44;  Kasson  vs.  Noltner,  43  Wis.  637); 
or  as  Pothier  says,  ''if  the  agent  does  not  exceed  the  power  with 
which  he  was  ostensibly  invested.**  This  agent  did  not  appear  or 
pretend  to  have  any  other  authority  from  the  plaintiffs  than  to 
solicit  orders  for  goods,  and  send  them  to  the  plaintiffs.  This  is 
all  he  did  in  this  case,  and  all  he  pretended  he  had  authority  to  do. 
In  this  case  he  could  not  possibly  do  his  principal  any  harm. 

To  this  extent  they  authorized  him  and  trusted  him;  but  they 
might  not  have  been  willing  to  trust  him  further  with  the  large 
and  dangerous  power  of  receiving  payments,  and  they  did  not,  so 
far  as  is  possible  to  infer  from  this  transaction. 

But  it  is  said  by  the  learned  counsel  of  the  respondent  the  agent 
Kilbourn  sold  the  goods  to  the  defendant,  and  in  this  poAver  to 
sell  is  implied  the  further  power  to  receive  the  consideration  or 


Ohap.  Ill  ]  McKiNDLT  vs.  Dunham.  401 

payment  therefor,  and  the  learned  judge  of  the  circuit  court  in 
effect  so  cliarged  the  jury,  as  follows:  "  Presumptively,  Mr.  Dun- 
ham had  the  right  to  pay  this  bill  to  the  person  from  whom  he 
purchased  the  goods''  (meaning  Kilbourn  the  agent);  and  again: 
''The  plaintiUs  sending  the  goods  to  Dunham  upon  that  sale  or 
order,presumptively  Kilbourn  had  the  right  to  collect  that  debt.** 

If  what  Kilbourn  did  could  properly  be  called  a  sale  of  the  goods, 
even  then  this  instruction  is  questionable  as  an  abstract  statement 
of  the  law;  for  it  does  not  always,  as  a  general  rule,  follow  that  the 
power  to  collect  the  moneys  upon  them  is  included  in  the  power  of 
an  agent  to  make  contracts  for  his  principal.  Story  on  Kg.  §  98; 
Higgins  vs.  Moore,  34  N.  Y.  417;  Mynn  vs.  Joliffe,  1  Moody  &  R. 
326. 

But  the  agent  did  not  sell  the  goods  or  even  contract  to  sell  them. 
When  the  defendant  had  completed  his  transaction  with  Kilbourn, 
there  had  been  no  binding  contract  made,  or  any  sale,  absolute  or 
conditional.  The  defendant  could  have  countermanded  his  order 
at  any  time  before  the  goods  were  shipped,  and  the  plaintiffs  could 
have  refused  to  accept  the  order.  Neither  party  had  become  bound 
by  anything  then  done. 

The  order  of  the  defendant  was  a  mere  proposal,  to  be  accepted 
or  not,  as  the  plaintiffs  might  see  fit,  and  he  could  have  withdrawn 
it  before  its  acceptance.  The  minds  of  the  parties  had  not  met, 
and  there  had  been  no  mutual  assent  or  aggregatio  mentium. 
Benj.  on  Sales,  §§  40,  70;  Johnson  vs.  FWcington,  39  Wis.  62. 
Even  as  a  broker  (and  he  was  less  rather  than  more  in  the  authority 
he  exercised  in  this  instance),  he  need  not  even  see  to  the  delivery 
of  the  goods  (Story  on  Sales,  §  85);  and  if  his  negotiation  had  been 
broken  off,  and  the  contract  not  finally  completed,  he  would  not  be 
entitled  to  his  commissisons.  Story  on  Sales,  §  86.  As  is  said  in 
Higgins  vs.  Moore,  supra,  "The  duty  of  a  broker,  in  general,  is 
ended  when  he  has  found  a  purchaser,  and  has  brought  the  parties 
together.  He  is  a  mere  negotiator  or  middleman  between  the 
seller  and  purchaser."  It  is  only  in  cases  where  the  broker  has 
possession  of  the  goods  that  he  can  sell,  and  in  that  case,  even,  if 
he  parts  with  the  securities  he  receives  on  the  sale  to  his  principal, 
his  implied  authority  to  receive  payment,  if  he  had  any,  ceases  with 
their  possession.  Strachan  vs.  Muxlow,  24  Wis.  1.  Aside  from 
the  clear  and  obvious  reason  from  the  general  principles  of  bargain 
and  sale,  and  principal  and  agent,  why  Kilbourn  was  not  author- 
36 


402  Cases  on^  Agency.  [Book  II 

ized  to  receive  payment  as  the  agent  of  the  plaintiffs  in  this  case, 
the  four  following  cases,  all  of  them  closely  analogous,  and  two  of 
them  precisely  parallel,  are  abundant  authority:  Baring  vs.  Cor- 
He,  2  B.  «&  Aid.  137;  Higgius  vs.  Moore,  supra;  Kornemann  vs. 
Monaghan,  24. Mich.  36;  Clarh  vs.  Smith,  88  111.  298. 

It  follows,  therefore,  that  so  far  the  circuit  court  committed  two 
flagrant  errors:  First,  in  ruling  and  instructing  the  jury  that  Kil- 
bourn,  as  agent  of  the  plaintiffs,  made  a  sale  of  the  goods  to  the 
defendant,  and  was  authorized  so  to  do;  and,  secondly,  that  if  he 
did  sell  the  goods,  he  had  therefore  authority  to  receive  payment 
therefor.  "We  omit  to  consider,  whether  admitting  both  these 
propositions,  he  could  have  received  payment  before  it  was  due 
according  to  the  terms  of  the  assumed  sale,  or  whether  the  fact  of 
his  proposing  payment  so  long  before  due  did  not  cast  suspicion 
upon  his  act,  especially  as  he  had  not  been  intrusted  with  the  bill 
of  the  goods  even,  and  did  not  pretend  that  he  had  authority  to 
receive  payment;  leaving  to  the  defendant  the  mere  voluntary  act 
of  payment,  in  answer  to  the  request,  *'  If  he  would  just  as  soon 
pay  him  for  those  cigars  as  not.'* 

We  have  so  far  treated  the  case  as  if  nothing  else  appeared  on 
the  face  of  the  bill  of  goods  or  figured  in  the  transaction,  for  this 
is  the  most  favorable  treatment  of  the  case  for  the  defendant.  We 
might  omit  entirely  this  other  element  in  the  case,  if  it  were  not 
passing  over  evidence  of  authority  in  the  agent  to  receive  payment 
in  this  particular  case,  by  construction  or  presumption,  and  silently 
sanctioning  a  judicial  practice  which  we  cannot  approve.  On  the 
face  of  the  bill  sent  to  the  defendant,  and  directly  under  his 
address,  there  appears  in  large,  legible  print,  in  red  ink,  as  if 
stamped  upon  it,  the  words,  ''Agents  not  authorized  to  collect." 
Through  these  words,  lengthwise,  appears  drawn  a  pen  line  in  dark 
ink  as  an  erasure.  The  positive  testimony  of  one  of  the  plaintiffs, 
at  least,  is  that  such  erasure  was  not  there  when  the  bill  was  sent  to 
the  defendant.  The  testimony  of  the  defendant  and  in  his  behalf 
was  only  that  it  was  there  when  the  bill  was  paid,  and  that  neither 
the  words  nor  the  erasure  were  observed  when  it  was  received. 

It  might  well  be  said  that  there  was  no  contradiction  of  the 
testimony  of  the  plaintiffs  that  the  erasure  was  not  made  before  the 
bill  was  sent  to  the  defendant,  and  that  such  fact  was  at  least  prima 
facie  established.  Even  on  that  hypothesis,  the  Circuit  Court 
refused  to  instruct  the  jury,  as  requested  by  the  counsel  of  the 


Chap.  Ill]  McKiNDLT  vs.  Dunham.  403 

appellant,  that  these  words  were  notice  to  the  defendant  whether 
he  saw  them  or  not.  We  think  this  was  clearly  erroneous.  II 
these  words,  so  legible  and  prominent  on  the  face  of  the  bill, 
would  not  be  notice,  it  would  seem  to  be  impossible  to  give  a  pur- 
chaser such  a  notice.  By  all  authorities  he  must  be  presumed  to 
have  observed  these  words,  and  to  have  had  such  notice,  when  they 
were  so  prominent  on  the  face  of  a  bill  of  goods  in  his  possession, 
and  in  which  he  alone  was  interested  as  purchaser.  It  might  as 
well  be  said  that  the  contents  of  any  written  or  printed  notice  of 
any  kind,  or  for  any  purpose,  were  not  presumed  to  have  been 
brought  home  to  and  to  be  known  by  a  party  on  his  receipt  of  the 
notice.  It  is  the  law,  and  ought  to  have  been  given  as  asked,  and 
not  left  to  the  problematical  finding  of  the  jury.  MamlocJc  vs. 
Fairbanks,  46  Wis.  415.     (Omitting  a  minor  point). 

The  judgment  of  the  Circuit  Court  is  reversed,  and  the  cause 
remanded  for  a  new  trial. 

Judgment  reversed. 

Note.— See,  also,  Putnam  vs.  French,  53  Vt.  402,  38  Am.  Rep.  682; 
Trainor  V8.  Morrison,  78  Me.  160,  57  Am.  Rep.  790. 


(75  Wisconsin,  619.) 

HIBBARD    vs.    PEEK 

fSupreme  Court  of  Wisconsin,  January,  1890.) 

Action  by  Hibbard,  Spencer  &  Bartlett  against  George  W.  Peek, 
to  recover  for  goods  sold  and  delivered. 

Miles  &  Shea,  for  appellant. 

Tomkins,  Merrill  <&  Smith,  for  appellee. 

Cole,  C.  J.  *  *  •  The  real  contest  in  the  case  is  upon 
the  counter-claim  or  offset  of  the  defendant  for  commissions.  The 
facts  on  which  the  counter-claim  arises  are  stated  by  the  defendant 
in  his  testimony  substantially  as  follows:  "  Benr.t  [the  plaintiff's 
salesman]  came  to  my  store  at  Ashland,  and  asked  if  I  wanted  some 
goods.  I  told  him  I  thought  so;  I  would  look  around.  I  asked 
him  how  he  would  like  to  take  a  stock  order.  He  said,  '  That  is 
what  I  would  like,' and  said:  'Where  is  it?'  I  said  I  wanted 
something  for  it.      I  generally  charge  for  information  that  is  vain- 


404  Cases  on  Agency.  [Book  II 

able.  He  -^vanted  to  know  whnt  I  wanted,  and  I  told  him  five  per 
cent,  on  the  amonnt.  He  asked  me  who  it  was,  and  I  said:  *  You 
give  me  five  per  cent,  and  I  will  tell  you.  He  said  he  did  not 
know  about  it;  that  he  would  take  a  little  while,  and  go  over  to 
Garnich's.  He  went  into  Garnich's,  and  came  back,  and  said  he 
knew  who  that  party  was,  and  said  it  was  Nelson.  I  said,  '  That 
is  right,  but,'  I  said,  '  it  won't  do  you  any  good,'  as  I  was  positive 
he  could  not  get  the  order  without  me;  and  he  said:  *I  will  give 
you  five  per  cent.  Give  me  the  order.'  I  dictated  an  order,  and 
told  Bennet  to  deliver  it  to  Nelson."  It  appears  that  Bennet  took 
this  order  or  letter,  and  went  to  Washburn,  and  sold  a  bill  of  goods, 
amounting  to  $2,300  or  $2,400,  to  Nelson.  Nelson  testified,  in 
effect,  that  he  did  not  buy  on  the  defendant's  credit,  and  that  the 
only  influence  that  the  defendant's  letter  had  upon  him  was  that 
the  defendant  recommended  the  firm,  and  that  he  bought  on  that 
ground;  that  he  knew  the  house  before,  and  that  it  had  been  recom- 
mended to  him  by  half  a  dozen  other  men;  that  he  probably  should 
have  bought  the  same  stock  if  the  defendant  had  not  sent  the  letter. 

Now,  upon  these  facts,  is  there  any  ground  for  holding  that 
there  was  a  valid  contract  entered  into  between  Bennet  and  the 
defendant  to  pay  the  5  per  cent,  commissions  on  the  bill  of  goods 
sold  Nelson?  There  is  surely  no  ground  for  claiming  that  Bennet 
had  any  authority  from  the  plaintiff  to  give  such  commissions  for 
any  aid  or  information  which  the  defendant  might  give  or  render 
in  making  the  sale.  The  secretary  of  the  plaintiff  corporation 
testifies  distinctly  and  positively  that  the  agent  who  sold  the  goods 
to  the  defendant  had  no  authority  to  promise  the  defendant  a 
commission  on  goods  sold  to  other  people,  or  to  Nelson,  and  that 
Buch  promise,  if  ever  made,  was  never  ratified  or  confirmed  so  as 
to  make  it  binding  on  the  principal.  Indeed,  the  evidence  is  per- 
fectly satisfactory  and  conclusive  that  the  plaintiff  never  gave  its 
traveling  salesmen  any  authority  whatever  to  grant  commissions, 
or  even  credits,  on  goods  sold  by  them.  It  is  clear,  therefore,  that 
Bennet  had  no  express  authority  to  bind  his  principal  to  pay  the 
defendant  commissions  on  goods  sold  Nelson,  even  if  such  a  contract 
were  made. 

Had  he  an  implied  authority,  growing  out  of  the  usage  or  custom 
in  the  hardware  trade  to  render  his  principal  liable  for  such  com- 
missions? On  this  point,  depositions  were  taken  of  a  number  of 
traveling  salesmen,  representing  hardware  houses  in  Detroit,  Chi- 
cago and  Milwaukee,  who  testified  that  it  was  customary  for  travel- 


Chap.  Ill]  HiBBARD  vs.  Peek.  406 

ing  men,  in  that  line  of  business,  to  agree  to  pay,  and  to  pay,  com- 
missions to  third  parties  for  procnring  orders,  and  that  such  con- 
tracts  were  sanctioned  by  the  different  houses  which  they  represented. 
But  there  was  considerable  countervailing  proof  on  this  question  of 
custom;  and  the  circuit  court  held  that  the  alleged  custom,  espe- 
cially in  Chicago  and  Ashland,  was  not  sufficiently  established  to 
warrant  submitting  the  case  to  the  jury  on  the  alleged  usage.  On 
that  point,  we  think,  the  learned  circuit  court  was  clearly  right. 
We  do  not  think  there  was  any  proof  given  of  a  custom  or  usage 
in  the  hardware  trade  of  traveling  salesmen  paying  such  commis- 
sions, or  agreeing  to  pay  them,  which  was  sufficiently  long-con- 
tinued and  uniform  so  that  the  court  would  be  justified  in  assum- 
ing that  the  parties  contracted  with  reference  to  it,  or  that  the 
salesman  had  authority  to  bind  his  principal  to  pay  such  commis- 
sions by  reason  of  its  existence.  The  practice  of  a  considerable 
number  of  houses  in  the  hardware  trade  of  giving  their  traveling 
salesmen  authority  to  pay  such  commissions  would  not  warrant  a 
court  in  presuming  that  agents  generally  had  such  authority  who 
were  sent  out  by  hardware  houses  to  sell  their  goods. 

The  authority  of  an  agent  in  any  given  case  is  incident  to  the 
character  bestowed  upon  him  by  the  principal.  If  the  principal 
has,  by  his  express  act,  or  as  the  logical  result  of  his  words  or  con- 
duct, impressed  upon  the  agent  the  character  of  one  authorized  to 
act  and  speak  for  him  in  a  given  capacity,  authority  so  to  speak 
and  act  follows  as  a  necessary  incident  of  the  character,  and  the 
principal,  having  conferred  the  character,  will  not  be  heard  to 
assert,  as  against  third  parties  who  have  relied  thereon  in  good 
faith,  that  he  did  not  intend  to  impose  so  much  authority,  or  that 
he  had  given  the  agent  express  directions  not  to  exercise  it;  and 
where  the  principal  confers  upon  the  agent  an  authority  of  a  kind, 
or  empowers  him  to  transact  business  of  a  nature,  in  reference  to 
which  there  is  a  well-defined  and  publicly-known  usage,  it  is  the 
presumption  of  law,  in  the  absence  of  anything  to  indicate  a  con- 
trary intent,  that  the  authority  was  conferred  in  contemplation  of 
the  usage.  Mechem,  Ag.  §§  278,  281;  Whart.  Ag.  §§  134,  676, 
696.  The  usage  of  a  particular  trade  or  business,  or  a  particular 
class  of  agents,  may  be  shown,  not  for  the  purpose  of  enlarging 
the  powers  of  the  agent  employed  therein,  but  for  the  purpose  of 
interpreting  those  powers  which  are  actually  given;  for  the  means 
ordinarily  used  to  execute  the  authority  are  included  in  the  power. 


406  Oases  on  Agency.  [Book  II 

and  may  be  resorted  to  by  all  agents,  and  especially  by  commercial 
agents.     Story,  Ag.  §  77. 

But  the  evidence  of  the  usage,  in  a  case  like  this,  should  be 
clear  and  satisfactory,  and  should  show  that  the  usage  has  so  long 
continued,  and  has  been  so  uniform,  that  merchants  in  that  kind 
of  business  may  be  presumed  to  authorize  their  agents  to  sell  their 
goods  in  the  ordinary  way  in  which  such  goods  are  sold,  and  in 
reference  to  such  custom.  The  evidence,  in  the  present  case,  falls 
far  short  of  establishing  the  usage  or  custom  in  the  hardware 
business  of  traveling  salesmen  making  contracts  on  behalf  of  their 
principals  to  pay  commissions  to  third  parties  for  aid  in  procuring 
orders  from  those  to  whom  goods  are  sold.  It  is  quite  clear  that 
the  defendant's  recommendation  sent  to  Nelson,  did  not  have  any 
influence  upon  the  latter  in  inducing  him  to  make  the  purchase 
he  did;  but,  had  the  fact  been  otherwise,  we  do  not  think  the 
plaintiff  was  bound,  by  the  contract  of  Bennet,  to  pay  the  defend- 
ant the  commissions  he  claims,  as  it  was  beyond  the  scope  of  his 
authority  to  make  such  a  contract.  It  follows  from  these  views 
that  the  judgment  of  the  circuit  court  must  be  affirmed. 

Note. — See,  also,  Adams  vs.  Pittsburgh  Ins.  Co.  95  Penn.  St.  848,  40 
Am.  Rep.  663;  Day  vs.  Holmes,  103  Mass.  806;  Daylight  Burner  Co.  vs. 
Odlin,  51  N.  H.  56,  13  Am.  Rep,  45;  Randall  vs.  Kehlor,  60  Me.  37;  Upton 
vs.  Suffolk  County  Mills,  11  Cash.  (Mass.)  586,  59  Am.  Dec  163:  Fickert  vs. 
Marston,  post.  p.  411 . 


(80  Maine,  496.) 

BILLINGS,  TAYLOE  &  COMPANY  vs.  MASON. 

(Supreme  Judicial  Court  of  Maine,  August,  1888. J 

The  opinion  states  the  facts. 
Wiswell,  King  <&  Peters,  for  plaintiff. 
Hale  (&  Hamlin,  for  defendants. 

Danforth,  J.  In  this  action  no  material  facts  are  in  dispute. 
The  court,  allowing  certain  alleged  payments,  directed  a  verdict 
for  the  balance,  to  which  order  the  plaintiff  excepts,  on  the  ground 
that  no  part  of  such  payment  should  be  allowed. 


<3hap.  Ill  ]     Billings,  Tayloe  &  Co.  vs.  Mason.  407 

The  action  is  assumpsit  upon  an  account  annexed.  The  defend- 
ant admits  that  he  received  from  the  plaintiff  the  goods  charged 
and  makes  no  question  as  to  the  prices.  This  makes  a  prima 
facie  case  against  him,  and  though  technically  it  does  not  change 
the  burden  of  proof,  it  devolves  upon  him,  if  he  would  avoid  this 
responsibility,  to  give  some  reason  why. 

The  explanation  offered  by  the  defendant  is  that,  though  he 
received  the  goods  from  the  plaintiff,  he  received  them  by  virtue 
of  an  express  agreement  with  an  agent  or  traveling  salesman  of  the 
plaintiff,  one  element  of  which  was  that  certain  goods,  of  a  like 
kind  which  the  defendant  then  had  should  be  taken  in  payment. 
This  agreement  with  the  agent  is  not  questioned,  but  the  answer  to 
it  is  two-fold;  first,  that  the  agent  had  no  authority  to  make  such 
a  contract,  and  secondly  that  the  contract  under  which  the  action 
is  sought  to  be  maintained  was  made  directly  with  the  plaintiff, 
though  in  some  degree  through  the  instrumentality  of  the  agent. 

Assuming  under  the  first  that  the  agent  had  no  authority  to 
make  the  contract  he  did,  and  the  evidence  is  quite  conclusive  upon 
that  point,  still  it  does  not  change  the  conceded  fact  that  he  not 
only  assumed  the  authority  to  do  so,  but  did  actually  make  such  a 
contract.  Waiving  for  the  moment  the  second  point  raised,  this  wag 
the  only  contract  having  the  assent  of  the  defendant,  the  contract 
under  which  he  acted  and  by  virtue  of  which  he  obtained  the 
goods.  It  is  quite  clear  that  the  plaintiff  cannot  hold  him  upon  a 
contract  he  did  not  make  or  repudiate  the  contract  in  part  and 
hold  the  remainder  valid.  Brigham  vs.  Palmer,  3  Allen,  450-452. 
Nor  can  he  be  holden  upon  an  implied  contract,  for  that  la 
excluded  by  the  express. 

The  second  point  relied  upon  by  the  plaintiff  must  fall  with  the 
first.  True,  the  order  for  the  goods  was  sent  to  the  principal,  pre- 
sumably by  the  agent,  with  the  consent  of  the  defendant.  But  as  to 
the  nature  of  the  order  received  there  is  a  singular  absence  of  testi- 
mony, though  we  have  the  evidence  of  the  plaintiff's  business  man- 
ager. Whether  it  was  accompanied  with  a  statement  of  the  con- 
tract it  does  not  appear.  It  is  certain  the  agent  had  no  authority 
to  send  any  other,  and  by  no  other  would  the  defendant  be  bound. 
He  had  a  right  to  suppose  that  the  plaintiff's  own  agent  would  send 
the  order  correctly,  and  that  when  he  received  the  goods  they  were 
sent  according  to  the  contract.  If  such  were  the  case,  the  contract 
of  the  agent  would  be  affirmed  by  the  principal,  in  sending  the 
goods.     If  such  were  not  the  case,  the  defendant  would  certainly 


408  Oases  oif  Agency.  [Book  II 

be  no  more  bonnd  than  the  plaintifE,  who  first  gave  credit  to  the 
agent. 

This  case  differs  materially  from  that  of  Clough  vs.  Wliitconib, 
105  Mass.  482,  in  which  an  order  in  writing  signed  by  the  defend- 
ant, was  sent  to  the  plaintiff;  nor  is  it  like  that  of  Finch  vs.  Mans- 
field, 97  Mass.  89,  in  which  the  agent  did  nothing  more  than 
solicit  an  order  and  forward  it  as  received  for  the  action  of  his 
principal.  But  in  the  principle  involved  this  case  is  like  that  of 
Wilson  vs.  Sfratton,  47  Maine,  120,  in  which  the  agent  assumed  to 
make  the  contract  of  sale  with  some  conditions,  and  it  was  held 
that  the  contract  was  not  completed  until  the  conditions  were  com- 
plied with. 

It  is  not,  however,  now  a  question  as  to  the  validity  of  the  con- 
tract made,  but  what  was  that  to  which  the  defendant  assented. 
He  can  be  held  to  that  and  to  no  other.  In  any  view  we  can  take 
of  the  case  there  seems  to  be  no  doubt  as  to  the  terms  of  the  agree- 
ment to  which  his  assent  was  given.  If  that  was  a  valid  contract 
the  ruling  was  clearly  correct.  If  it  was  not,  the  ruling  was  more 
favorable  to  the  plaintiff  than  it  was  entitled  to  in  this  form  of 
action.     In  either  case  the  exceptions  must  be  overruled. 


(90  NoETH  Oaeolina,  101,  47  Am.  Rep.  516.) 

HUNTLEY  vs.   MATHIAS. 

CSupreme  Court  of  North  Carolina,  February,  188^.J 

Action  of  damages  for  over-driving  a  horse  hired  by  a  traveling 
agent  of  the  defendant.  The  opinion  states  the  point.  The  plaint- 
iff had  judgment  below. 

Little  and  Parsons  and  Haywood  <&  Haywood,  for  plaintiff. 

J.  A.  Lockhart  and  S.  T.  Ashe,  for  defendants. 

Merrimon,  J.  In  the  absence  of  any  written  instrument, 
agencies  in  many  cases  arise  from  verbal  authorizations,  from 
implications,  from  the  nature  of  the  business  to  be  done,  or  from 
the  general  usages  of  trade  and  commerce. 

It  is  a  general  principle,  applicable  in  all  such  cases,  whether  the 
agency  be  general  or  special,  unless  the  inference  is  especially  nega- 
tived by  some  fact  or  circumstance,  that  it  includes  the  authority  to 


Chap.  Ill]  Huntley  vs.  Mathias.  409 

employ  all  the  usual  modes  and  means  of  accomplishing  the  pur- 
poses and  ends  of  tlie  agency,  and  a  slight  deviation  by  the  agent 
from  the  course  of  his  duty  will  not  vitiate  his  act,  if  this  be  imma- 
terial or  circumstantial  only,  and  does  not,  in  substance,  exceed  his 
povrer  and  duty.  Such  an  agency  carries  with  and  includes  in  it, 
as  an  incident,  all  the  powers  which  are  necessary,  proper,  usual 
and  reasonable,  as  means  to  effectuate  the  purposes  for  which  it 
was  created,  and  it  makes  no  difference  whether  the  authority  is 
general  or  special,  expressed  or  implied,  it  embraces  all  the  appro- 
priate means  to  accomplish  the  end  to  be  attained. 

The  nature  and  extent  of  the  incidental  authority,  in  such  cases, 
turn  oftentimes  upon  very  nice  considerations  of  actual  usage,  or 
implications  of  law,  and  it  is  sometimes  difficult  to  apply  the  true 
rule.  Incidental  powers  are  generally  derived  from  the  nature  and 
purposes  of  the  particular  agency,  or  from  the  particular  business 
or  employment,  or  from  the  character  of  the  agent  himself.  Some- 
times the  powers  are  determined  by  mere  inference  of  law;  in  other 
cases  by  matter  of  fact;  in  others  by  inference  of  fact  and  in  others 
still  to  determine  them  becomes  a  question  of  mixed  law  and  fact. 
Story  on  Agency,  §§  85,  97,  100;  Oilbraith  vs.  Lineberger,  69  N. 
C.  145;  Eatzenstcin  vs.  Railroad,  84  Id.  688;  Bank  vs.  Bank,  75 
Id.  534;  Williams  vs.  Windley,  86  Id.  107;  1  Wait  Act.  &  Def. 
22],  230. 

In  the  case  before  us  the  allegations  of  the  complaint  are  very 
general  and  the  evidence  is  meagre,  but  applying  the  rules  of  law 
above  stated  to  the  whole  case,  we  think  the  court  properly  held 
that  there  was  evidence  to  go  to  the  jury  in  respect  to  the  authority 
of  the  agent  to  hire  the  horse. 

It  is  alleged  in  the  complaint  that  Mathias  was  the  agent  of  the 
defendant  corporation,  and  this  is  admitted  in  the  answer,  and 
the  evidence  went  to  show  that  the  object  of  the  agency  was, 
that  the  agent  should  travel  about  the  country,  from  place  to 
place,  and  sell  steam  engines  for  his  principal.  Now,  common 
experience  and  observation  show,  that  generally,  a  man,  whether 
as  principal  or  agent,  going  about  the  country  from  place  to  place, 
and  in  various  directions,  to  sell  steam  engines  or  merchandise  of 
any  kind  that  people  generally  purchase,  does  not  go  on  foot,  but 
on  railroads  when  he  can,  on  horseback,  or  in  light,  convenient 
vehicles.  This  is  done  almost  uniformly,  with  a  view  to  expedi- 
tion as  well  as  the  reasonable  comfort  of  the  person  traveling.  In 
the  general  order  of  things  this  is  done,  and  it  is  reasonable  anc' 


410  Cases  on  Agekct.  [Book  II 

proper  that  it  should  be.  And  ordinarily,  where  an  agent  is  sent 
out  on  such  service,  his  principal  furnishes  the  means  of  trans- 
portation. This  is  not,  perhaps,  uniformly,  but  it  is  generally  so, 
and  if  there  is  not  a  legal  presumption  of  authority  in  the  agent  to 
hire  a  horse  or  vehicle  for  the  purpose  of  getting  from  place  to 
place,  the  fact  certainly  raises  the  ground  for  an  inference  of  fact 
to  that  effect,  to  be  drawn  by  the  jury. 

The  nature  of  the  agency  in  this  case  rendered  it  necessary  that 
the  agent  should  from  time  to  time  have  a  horse  to  enable  him  to 
get  from  one  place  to  another,  and  this  gives  rise  to  the  inference 
that  his  employer  gave  him  authority  to  hire  one.  The  corporation 
defendant  sent  its  agent  out  to  travel  from  place  to  place  to  sell 
its  goods,  and  it  gave  him  credit  as  a  trustworthy  man  in  and  about 
the  business  of  the  agency.  In  view  of  the  habits  of  men,  the  cus- 
tomary course  of  business,  especially  the  custom  in  such  agencies 
as  that  under  consideration,  there  arose  the  ground  for  an  inference 
that  the  jury  might  properly  draw,  not  conclusive  in  itself,  but  to 
be  made  and  weighed  by  the  j'^ry,  to  the  effect  that  the  agent 
Mathias  had  authority  to  hire  the  horse  for  the  purpose  of  his  agency. 
Katzenstein  vs.  Railroad,  supra;  Bank  vs.  Bank,  supra;  Beiitley 
vs.  Dorjgeit,  51  Wis.  224,  s.  c.  37  Am.  Rep.  827.  That  the  prin- 
cipal is  liable  to  third  persons  for  torts,  deceits,  frauds,  malfeas- 
ance and  non-feasance  and  omissions  of  duty  of  his  agent  in  the 
course  of  his  employment,  cannot  be  questioned,  even  though  the 
principal  did  not  authorize,  justify  or  participate  in  or  know  of 
such  misconduct.  Story  on  Agency,  452  et  seq.;  Jones  vs.  Glass, 
13  Ired.  305;  Cox  vs.  Hoffman,  4  Dev.  &  Bat.  180  {ante,  p.  39). 

The  evidence  in  this  case  tended  to  show,  and  the  jury  found, 
that  the  agent  hired  the  horse  in  the  course  of  the  business  of  his 
agency,  and  for  the  benefit  of  his  principal,  and  while  he  had  pos- 
session of  and  used  the  horse  in  the  course  of  his  business  he  neg- 
ligently and  carelessly  drove  him  too  rapidly,  or  otherwise  mal- 
treated him,  whereby  he  was  seriously  injured  to  the  damage  of  the 
plaintiff.  The  court  fairly  left  the  question  of  authority  in  the 
agent  to  hire  the  horse,  and  the  character  and  extent  of  the  injury 
to  him  to  the  jury,  and  we  cannot  see  that  the  defendant  has  any 
just  ground  of  complaint. 

There  is  no  error,  and  the  judgment  must  be  affirmed. 

No  error. 


Chap.  Ill  ]  PicKEET  vs.  Maestoh.  4:11 

(68  Wisconsin,  465,  60  Am.  Rep.  876.) 

PICKERT  vs.  MARSTON. 

("Supreme  Court  of  Wisconsin,  January,  1887.) 

Action  on  account  for  goods.  Defense,  breach  of  warranty  of 
other  goods.  The  opinion  states  the  facts.  The  defendant  had 
judgment  below. 

BUehman,  Tourtellote  &  Blooming  dale,  for  appellant. 

G.  L.  Hood,  for  respondents. 

Oassoday,  J.  The  evidence  is  undisputed  that  the  fish  were  in 
good  condition  when  shipped  to  the  defendants  from  Boston,  and 
worthless  when  they  reached  the  defendants  at  LaCrosse.  The 
defendants  made  the  contract  of  purchase  at  LaCrosse  with  the 
plaintiff's  traveling  salesman,  who  resided  at  Chicago.  There  was 
evidence  tending  to  prove  that  the  fish  shipped  were  not  the  fish 
ordered;  and  also,  that  by  the  terms  of  the  contract,  the  fish 
ordered  were  guaranteed  by  the  traveling  salesman  to  reach  the 
defendant  in  LaCrosse  in  good  merchantable  condition.  The 
evidence  on  the  part  of  the  i^laintiff  was  to  the  effect  that  the 
traveling  salesman  had  no  authority  to  make  such  guaranty,  nor 
any  assurance  as  to  the  condition  in  which  the  fish  should  be  on 
reaching  LaCrosse;  and  that  he  so  informed  the  defendants  about 
a  month  prior  to  the  taking  of  the  order  in  question. 

The  issue  made  does  not  arise  between  the  principal  and  agent, 
but  between  the  principal  and  the  defendants  who  made  the  con- 
tract of  purchase  with  the  agent.  The  agency  and  the  right  to 
contract  for  the  sale  are  admitted.  But  the  authority  to  make  the 
guaranty  or  warranty  is  denied.  Beyond  question,  an  agent  may 
bind  his  principal  if  he  does  not  exceed  the  power  with  which  he 
is  ostensibly  invested,  notwithstanding  he  has  secret  instructions 
from  his  principal  to  the  contrary.  Putnam  vs.  French,  53  Vt. 
402,  38  Am.  Rep.  682;  Bentley  vs.  Doggett,  51  Wis.  224,  27  Am. 
Rep.  827:  Bouch  vs.  Enos,  61  Wis.  664.  Assuming  that  the 
traveling  salesman  had  no  actual  authority  to  make  such  guaranty 
or  warranty  of  the  fish,  then  it  became  important  to  determine 
whether  his  authority  to  sell  or  contract  for  the  sale  clothed  him 
with  an  implied  authority  to  make  such  guaranty  or  warranty. 
"  The  general  rule  is,  as  to  all  contracts,  including  sales,"  said  a 


412  Cases  ojs  Agency.  [Book  II 

late  learned  author,  "  that  the  agent  is  antliorized  to  do  whatever 
is  usual  to  carry  out  the  object  of  his  agency,  and  it  is  a  question 
for  the  jury  to  determine  what  is  usual.  If  in  the  sale  of  the  goods 
conhded  to  him,  it  is  usual  in  the  market  to  give  a  warranty,  the 
agent  may  give  that  warranty  in  order  to  effect  a  sale/*  2  Benj. 
Sales,  (4th  Am.  ed.)  §  945,  p.  824.  The  text  is  supported  by  the 
citation  of  numerous  authorities.  See  Baylijfe  vs.  Butterworth,  1 
Exch.  425;  Graves  vs.  Legg,  2  Hurl.  &  N.  210 j  Dingle  vs.  Hare, 
97  Eng.  Com.  L.  145;  Upton  vs.  Suffolk  Mills,  11  Cush.  (Mass.) 
686,  59  Am.  Dec.  163;  Herring  vs.  SJcagg^,  62  Ala.  180,  34  Am. 
Hep.  4;  Smith  vs.  Tracy,  36  N.  Y.  82;  (ante,  p.  154)  Ahem  vs. 
Goodspeed,  72  N.  Y.  108. 

Thus  in  Dingle  vs.  Hare,  supra,  Erle,  C.  J.,  observed:  "The 
strong  presumjition  is  that  when  a  principal  authorizes  an  agent 
to  sell  goods  for  him  he  authorizes  him  to  give  all  such  warranties 
as  are  usually  given  in  the  particular  trade  or  business;"  and  Btles, 
J.,  added:  "An  agent  to  sell  has  a  general  authority  to  do  all 
that  is  usual  and  necessary  in  the  course  of  such  employment.'* 
So  in  Smith  vs.  Tracy,  sujira,  Poeter,  J.,  speaking  for  the  court, 
said:  "  The  rule  applicable  to  such  a  case  is  stated  with  discrimi- 
nation and  accuracy  in  our  leading  text-book  (Parsons)  on  the 
law  of  contracts:  *  An  agent  employed  to  sell,  without  express 
power  to  warrant,  cannot  give  a  warranty  which  shall  bind  the 
principal,  unless  the  sale  is  one  which  is  usually  attended  with 
warranty.'" 

Here  the  plaintiff  offered  to  prove  by  different  witnesses  having 
the  requisite  knowledge  the  general  custom  of  the  tnide  as  known 
and  universally  followed  by  dealers  in  fish,  as  to  their  being 
warranted  or  guaranteed  against  spoiling  or  turning  red  in  transit;  but 
it  was  excluded,  and  as  we  think  erroneously,  under  the  rules  of  law 
above  stated.  It  would  seem,  however,  that  to  be  binding  upon  the 
defendants,  such  custom  should  be  known  to  them  or  exist  in  their 
section  of  the  country.  Thus  in  Graves  vs.  Legg,  supra,  it  was 
said  by  Cockburn,  C.  J.:  "The  only  question  is  whether,  when 
a  merchant  residing  in  London  contracts  with  a  Liverpool  merch- 
ant in  Liverpool,  he  is  bound  by  the  usage  of  trade  at  Liverpool. 
We  think  that  as  he  employed  an  agent  at  Livei'iDOol  to  make  a 
contract  there,  it  must  be  taken  to  have  been  made  with  all  the 
incidents  of  a  contract  entered  into  at  Liverpool,  and  one  is  that 
notice  to  the  buyer's  agent  is  notice  to  the  principal." 


Chap.  Ill]  PiCKEBT  vs.  Maeston.  413 

By  the  conrt:    The  judgment  of  the  circuit  court  is  reversed, 
and  the  cause  is  remanded  for  a  new  triaL 


III. 

op  agent  authoeized  to  purchase. 

(56  Wisconsin,  23.) 

KOMOEOWSKI   vs.  KRUMDICK. 

(Supreme  Court  of  Wisconsin,  October,  ISSi.J 

Action  to  recover  for  wheat  alleged  to  have  been  sold  to  defend- 
ants through  their  agent,  one  Grist.    Judgment  below  for  plaintiff. 

H.  C.  Highee,  for  appellants. 

Button  Brothers,  for  respondent. 
^  Taylor,  j.  *  *  *  The  power  of  Grist  as  the  agent  of  the 
defendants  was  limited  to  purchases  for  cash,  and  nothing  else, 
and  he  was  expressly  prohibited  from  taking  wheat  in  store  on 
their  account.  When  the  principal  furnishes  his  agent,  to  buy  on 
his  account,  sufficient  funds  to  make  the  purchases,  the  law  does 
not  raise  any  presumption  that  such  agent  may  bind  his  principal 
by  a  purchase  on  credit,  but  the  contrary.  And  in  such  case  the 
principal  will  not  be  bound  by  a  purchase  made  on  credit,  unless 
he  has  knowledge  of  the  fact,  and  does  something  in  ratification 
thereof,  or  unless  it  be  shown  that  it  is  the  custom  of  the  trade  to 
buy  upon  credit.  The  defendants  furnished  Grist  the  money  to 
pay  for  all  purchases  made  by  him  on  their  account,  and  the  evi- 
dence tends  to  show  that  Grist  did  not  deliver  to  them  enough 
wheat  to  cover  the  amount  of  their  advances. 

There  is  nothing  in  the  evidence  tending  to  show  that  the 
defendants  held  Grist  out  as  having  any  other  powers  as  their 
agent  than  those  expressly  conferred  upon  him.  There  is  no 
evidence  that  the  defendants  had  ever  ratified  any  purchase  by 
Grist  for  them  upon  credit.  There  is  no  evidence,  in  fact,  that  he 
ever  made  any  purchase  except  of  the  plaintiff  upon  credit.  Nor 
i.,  flicre  any  evidence  that  an  agent  to  purchase  wheat  for  a  princi- 


414  Cases  on  Agency.  [Book  II 

pal  at  a  giyen  place,  and  to  ship  the  same  to  the  principal  at 
another  place,  has  any  implied  authority  to  make  the  purchases 
upon  the  credit  of  the  principal.  There  is  nothing  in  the  nature 
of  the  business  itself,  in  the  absence  of  any  evidence  as  to  the 
custom  of  the  trade,  which  would  justify  a  court  in  determining  as 
a  question  of  law  that  an  agent  to  purchase  wheat  or  other  grain 
may  bind  his  principal  by  a  purchase  on  credit. 

An  agent  to  buy  wheat  or  other  grain  must,  in  order  to  bind  his 
principal,  who  furnishes  in  advance,  the  funds  to  make  the  pur- 
chases, buy  for  cash,  unless  he  has  express  power  to  buy  upon  credit, 
or  unless  the  custom  of  the  trade  is  to  buy  upon  credit;  and  in  the 
absence  of  express  authority,  or  proof  of  the  custom  of  the  trade  to 
buy  on  credit,  such  agent  cannot  bind  his  principal  by  a  purchase 
upon  credit  of  a  person  who  is  ignorant  of  his  real  authority 
as  between  himself  and  his  principal.  Paley  on  Ag.  161,  162; 
Jaques  vs.  Todd,  3  Wend.  83;  ScMmmel2Jennick  vs.  Bayard,  1  Pet. 
264;  Story  on  Ag.  §§  225,  226;  Berry  vs.  Barnes,  23  Ark.  411; 
Stoddard  vs.  Mclhain,  7  Rich.  (S.  C.)  525;  Whart.  on  Ag.  §  186; 
Adams  vs.  Boies,  24  Iowa,  96;  Tabor  vs.  Cannon,  8  Met.  456; 
Temple  vs.  Pomroy,  4  Gray,  128;  Banh  vs.  Buglee,  1  Abb.  Oh. 
App.  86.       *      *      * 

If  the  evidence  is  sufficient  to  show  a  sale  upon  credit  to  Grist  as 
agent  of  the  defendants,  and  that  the  wheat  was  delivered  to  the 
defendants  and  received  by  them  of  Grist,  still  they  would  not  be 
liable  to  the  plaintiff  unless  they  received  the  wheat  knowing  it  had 
been  bought  upon  credit,  or  they  had  received  the  wheat  of  Grist 
knowing  they  had  no  funds  in  his  hands  at  the  time  sufficient  to  pay 
for  the  same.  If  they  furnished  money  to  tlieir  agent  sufficient  at  all 
times  to  pay  for  all  the  wheat  they  received  from  him,  they  had 
the  right  to  suppose  that  all  the  wheat  bought  by  Grist  for  them 
was  paid  for  at  the  time  it  was  delivered  to  them,  and,  if  he  had 
not  in  fact  paid  for  it  they  would  only  be  liable  to  the  seller  under 
the  circumstances  above  stated.       *       *       ♦ 

The  judgment  of  the  circuit  court  is  reversed,  and  the  cause 
remanded  for  a  new  trial. 

Note.— See  Wheeler  vs.  McQuire,  ante,  p,  8C3;  Hubbard  vs.  Tenbrook, 
ante,  867;  Watteau  vs.  Fenunck,  ante,  p.  869. 


Chap.  Ill  ]    Jackson  bt  al.  vs.  National  Bank.  415 

IV. 

OF  AGENT  AUTHORIZED  TO   SIGN   NEGOTIABLE   PAPEB. 


(       Tenn.        ,  20  S.  W.  Rep.  802,  18  L.  R.  A.  663.) 

JACKSON  ET  AL.  vs.  NATIONAL  BANK   OF  McMINN- 

VILLE. 

^Supreme  Court  of  Tennessee,  January,  189S.J 

Action  by  Jackson,  Mathews  &  Harris  against  the  National  Bank 
of  McMinnville.  The  complainants  were  wholesale  grocery  mer- 
chants and  had  in  their  employ  as  a  traveling  salesmen  or  drummer 
one  Gibson.  Gibson's  duty  was  to  travel  through  the  country,  take 
orders  from  retail  merchants  for  goods,  and  collect  the  bills  as  they 
became  due.  Gibson  sold  a  bill  of  goods  to  Meadows.  Before 
Meadows'  bill  became  due,  and  while  Gibson  was  still  in  the  service 
of  complainants,  he  proposed  to  Meadows  that  if  he  would  then 
pay  the  bill,  he  would  be  allowed  a  discount  of  2  per  cent. 
Meadows  agreed,  and  gave  to  Gibson  his  check  on  the  defendant, 
payable  to  the  order  of  Jackson,  Mathews  &  Harris.  On  the  face 
of  the  check  was  inserted  the  statement  that  it  was  "in  full  of 
acct.  to  date."  Upon  the  back  of  the  check  Gibson  indorsed  the 
names  of  complainants,  **  Jackson,  Mathews  &  Harris,  by  Gibson," 
and  presented  it  to  the  defendant  bank,  where  it  was  paid  to  him 
and  charged  against  the  deposit  account  of  Meadows.  Gibson 
failed  to  pay  over  or  account  to  complainants  for  this  money.  Com- 
plainants having  learned  that  Gibson  had  collected  other  money 
due  them,  and  failed  to  account  for  it;  discharged  him.  Gibson 
absconded. 

Subsequently  complainants  sent  to  J.  J.  Meadows  a  statement  of 
his  account,  requesting  payment.  Meadows  replied  that  he  had 
paid  the  account  to  Gibson  by  giving  him  a  check  on  the  defendant 
bank,  and  had  settled  with  the  bank,  and  taken  up  the  check. 
Complainants  demanded  of  defendant  payment  to  them  of  the 
check,  which  was  refused.  Complainants  filed  their  bill  to  hold 
the  bank  liable,  and  to  recover  the  amount  of  the  check,  alleging 
that  Gibson  had  no  right  to  indorse  complainant's  name,  and  that 
the  payment  of  the  check  to  him  was  unauthorized.  The  defend- 
ant answered,  stating,  in  substance,  that  Gibson  was  authorized  to 


416  Cases  on  Agency.  [Book  II 

indorse  complainants*  name  to  checks  and  receive  the  money 
thereon;  that,  if  not  expressly  empowered,  he  was  by  implication 
authorized  so  to  do;  that  Gibson,  while  in  complainants'  service, 
had  frequently  received  checks  payable  to  complainants,  indorsed 
complainants'  name,  and  received  the  money  thereon,  and  that 
these  acts  of  Gibson  were  known  to  and  had  been  ratified  by  the 
complainants;  that  they  were  estopped  from  denying  his  authority, 
and  that  it  was  inequitable  for  complainants  to  undertake  to  visit 
the  consequences  of  their  own  negligence  and  misplaced  confidence 
upon  respondent.  The  chancellor  dismissed  the  bill.  Complain- 
ants appealed. 

T.  G.  Lind  and  Smith  &  Dickinson,  for  appellants. 

Murray  <&  Fairbanks,  for  appellee. 

HoLMAN,  J.  (After  stating  the  facts  and  disposing  of  another  mat- 
ter. )  All  the  members  of  complainants'  firm  testify  that  Gibson  had 
not  been  empowered  to  indorse  the  firm's  name  on  checks  received  in 
payment  of  goods.  Several  drummers  were  examined,  as  witnesses  for 
defendant,  to  prove,  and  a  majority  of  them  say  with  some  qualifi- 
cation, that  it  is  the  usage  and  custom  of  traveling  salesmen  and 
drummers,  who  are  empowered  to  collect  and  receipt  bills  and 
accounts,  to  indorse  the  names  of  their  principals  to  checks  received 
in  payment  for  goods;  and  it  is  insisted  that  by  implication  Gibson  was 
authorized  to  indorse  complainants'  name  to  the  check, and  receive  the 
money.  We  do  not  think  the  usage  or  custom  sufiiciently  proven, 
nor  do  we  intimate  an  opinion  that  such  a  power  can  be  inferred 
from  usage  or  by  implication.  A  person  cannot  by  proof  establish 
a  usage  or  custom  which,  in  his  own  interest,  contravenes  the 
established  commercial  law.  Vermilye  vs.  Express  Co.,  21  Wall. 
139. 

No  authority  will  be  implied  from  an  express  authority.  Wliat- 
ever  powers  are  strictly  necessary  to  the  effectual  exercise  of  the 
express  powers  will  be  conceded  to  the  agent  by  implication.  In 
order,  therefore,  that  the  authority  to  make  or  draw,  accept,  and 
indorse  commercial  paper  as  the  agent  of  another,  may  be  implied 
from  some  other  express  authority,  it  must  be  shown  to  be  strictly 
necessary  to  the  complete  execution  of  the  express  power.  The 
rule  is  strictly  enforced  that  the  authority  to  execute  and  indorse 
bills  and  notes  as  agent,  will  not  be  implied  from  an  express  author- 
ity to  transact  some  other  business,  unless  it  is  absolutely  necessary 


Ohap.  Ill]     Jackson  et  al.  vs.  National  Bank.  417 

to  the  exercise  of  express  authority.  Tied.  Com.  Paper,  §  77. 
Possession  of  a  check  payable  to  order,  by  one  claiming  to  be  agent 
of  the  payee,  is  not  prima  /acte  proof  of  authority  to  demand  pay- 
ment in  the  name  of  the  true  owner.  Id.  §  312.  A  bank  is  obliged 
by  custom  to  honor  checks  payable  to  order,  and  pays  them  at  its 
peril  to  any  other  than  the  person  to  whose  order  they  are  made 
payable.  Id.  §  431.  It  must  see  that  the  check  is  paid  to  the 
payee  therein  named  upon  his  genuine  indorsement,  or  it  will 
remain  responsible.  Pickle  vs.  Muse,  88  Tenn.  380,  17  Am.  St. 
Rep.  900. 

An  authority  to  receive  checks  in  lieu  of  cash  in  payment  of  bills 
placed  in  the  hands  of  an  agent  for  collection  does  not  authorize 
the  agent  to  indorse  and  collect  the  check.  Graham  vs.  Insiitu- 
tion,  46  Mo.  186;  1  Wait,  Act.  &  Def.  p.  284;  1  Daniel,  Neg.  Inst* 
§  294.  The  indorsement  of  the  check  was  not  a  necessary  incident 
to  the  collection  of  accounts.  Graham  vs.  Institution,  46  Mo.  186. 
It  follows  that  a  drummer  or  commercial  traveler,  employed  to 
sell  and  take  orders  for  goods,  to  collect  accounts,  and  receive 
money  and  checks  payable  to  the  order  of  his  principal,  is  not  by 
implication  authorized  to  indorse  such  principaFs  name  to  such 
checks.  No  equitable  considerations  can  be  invoked  to  soften 
seeming  hardships  in  the  enforcement  of  the  laws  and  rules  fixing 
liability  on  persons  handling  commercial  paper.  These  laws  are 
the  growth  of  ages,  and  the  result  of  experience,  having  their 
origin  in  necessity.  The  inflexibility  of  these  rules  may  occa- 
sionally make  them  seem  severe,  but  in  them  is  found  general 
security.  The  decree  of  the  chancellor  is  reversed,  and  a  decree  in 
favor  of  comjjlainants  against  the  defendant  will  be  entered  here 
for  the  amount  of  the  Meadows  check,  with  interest  from  date  of 
filing  the  bill,  and  the  costs. 
27 


418  Oases  os  Agency.  [Book  II 

(  77  Georgia,  285,  4  Am.  St.  Rep.  85.) 

KING  vs.   SPARKS.  .  ^ 

(Supreme  Court  of  Georgia,  January,  1887.) 

Action  upon  draft  for  $1,100.  The  opinion  states  the  facts. 
Judgment  below  for  plaintiff. 

Key  S  Preston,  J.  H.  Lumpkin,  R.  V.  Hardeman  and  Lanier  <& 
Anderson,  for  plaintiffs  in  error. 

Hardeman  &  Davis,  for  defendant  in  error. 

Blandford,  J.  Sparks  brought  his  action  upon  a  certain  bill 
or  draft  which  purported  to  be  made  by  the  Gordons  and  the 
plaintiffs  in  error.  To  this  action  the  Kings  pleaded  noii  est  factum. 
There  was  much  evidence  introduced  to  show  whether  Gordon  had 
the  right  to  sign  the  name  of  the  Kings  to  this  note  or  draft  or  to 
any  note  for  any  amount;  but  the  plaintiffs'  evidence  clearly 
showed  that  he  only  had  the  authority  from  one  of  the  Kings  to 
sign  his  name  to  a  note  for  five  hundred  dollars.  The  court 
charged  the  jury  that  if  W.  J.  King  authorized  R.  A.  Gordon  to 
sign  his  name  to  a  note  for  five  hundred  dollars,  and  Gordon 
abused  his  authority,  and  signed  King's  name  to  a  note  for  a  larger 
amount  than  King  authorized,  and  Sparks  had  no  notice  thereof. 
King  would  be  liable.  This  charge  of  the  court  is  the  main  excep- 
tion and  error  assigned. 

Gordon  was  but  a  special  or  particular  agent  to  do  a  particular 
act,  to  wit,  to  sign  King's  name  to  a  note  for  five  hundred  dollars; 
nor  does  it  appear  tliat  Sparks  knew  that  Gordon  was  King's  agent 
for  any  purpose,  as  King's  name  was  signed  to  the  paper,  and  did 
not  purport  to  have  been  signed  by  Gordon,  agent.  The  agent  had 
no  authority  to  sign  the  name  of  King  to  this  draft;  his  having  done 
BO  is  a  mere  forgery.  King  is  not  liable  on  the  same  to  any  one; 
it  is  not  his  act  and  deed,  and  he  did  nothing  which  estops  him 
from  so  declaring.  See  Story  on  Agency,  §  17;  Code.  §  2196; 
New  York  Iron  Mine  vs.  Neyaunee  Bank,  39  Mich.  644,  {post, 
p.  42  ). 

The  money  advanced  \>}  Sparks  on  the  draft  was  to  Gordon  and 
for  Gordon's  benefit,  and  Sparks  was  chargeable  with  notice  as  to 
the  genuineness  of  the  paper.  The  principle  that  where  one  of 
two  innocent  persons  must  suffer  by  the  act  of  a  third  person,  he 


Chap.  Ill]  King  vs.  Spaeks.  419 

must  bear  the  loss  who  put  it  in  the  power  of  such  third  person  to 
inflict  the  injury,  does  not  apply  in  this  case,  because  the  third 
person  who  did  the  injury,  did  so  of  himself  and  without  warrant 
or  authority  from  any  one;  it  was  not  an  abuse  of  a  power  granted 
by  King  to  Gordon,  but  it  was  an  act  by  Gordon  wholly  unwar- 
ranted. Wood  vs.  Steele,  6  WaU  (U.  S.)  80,  83.  The  charge  was 
manifest  error. 

Judgment  reversed. 

Note. — Authority  to  execute  negotiable  instruments  will  be  strictly  con- 
Btrued.  Craighead  vs,  Peterson,  ante,  p.  373;  Brantley  vs.  Southern  L.  Ins, 
Co.,  58  Ala.  554;  Blackwell  vs.  Ketcham,  53  Ind.  184;  Breed  vs.  First  Nat. 
Bank,  4  Colo.  481;  First  National  Bank  vs.  Gay,  63  Mo.  33,  21  Am.  Rep. 
480. 


V. 

OF  AGENT  TO  MANAGE  BUSINESS. 


(46  New  Jeksey  Law,  448,  50  Am.  Kep.  442.) 

BKOCKWAY  vs.    MULLIN. 

^Supreme  Court  of  New  Jersey,  November,  I8S4.J 

Action  to  recover  for  the  loss  of  a  wagon,  harness,  etc.  The 
agreement  under  which  they  were  furnished  was  made  with  the 
husband  of  appellant,  who  acted  as  her  agent  in  carrying  on  the 
hotel,  and  was  to  the  effect  that  horses  and  carriages  furnished  to 
guests  of  the  hotel  should  be  charged  to  the  hotel,  and  that  Brock- 
way,  as  such  agent,  was  to  be  responsible  for  their  safe  keeping 
and  return.  Brockway  ordered  the  horse,  wagon,  etc.,  for  a  guest, 
who  absconded  with  them,  and  the  horse  only  was  recovered. 

B.  Byington,  for  plaintiff  in  certiorari. 
J.  H.  Meeher,  for  defendant. 

Reed,  J.  The  reason  relied  upon  for  the  reversal  of  this  judg- 
ment which  I  will  first  notice  is  that  there  is  no  evidence  in  tlie 
case  from  which  the  court  could  find  that  the  contract  set  out  in 
the  finding  of  the  court  was  entered  into  between  the  plaintiff  and 
Frank  S.  Brockwaj.     But  while  the  testimony  is  not  very  clear. 


430  Cases  on  Agekct.  [  Book  II 

yet  there  was,  in  that  of  the  plaintiff  detailing  the  conversation 
between  himself  and  Frank  S.  Brockway  relative  to  the  furnishing 
of  carriages  to  the  guests  of  the  hotel,  [evidence]  from  which  the 
deduction  might  be  drawn  that  such  a  contract  was  entered  into. 

The  next  reason,  and  the  important  reason,  is  that  such  a  con- 
tract, if  made,  did  not  bind  Mrs.  Brock  way,  because  it  related  to 
a  matter  which  was  outside  of  the  agency  with  which  she  had 
invested  her  husband.  The  court  found  that  the  contract  into 
which  the  husband  entered  with  the  plaintiff  was,  that  he,  the  hus- 
band, as  the  agent  of  Mrs.  Brockway,  would  be  responsible  for  the 
safe  keeping  of  the  bailments,  and  to  pay  for  the  use  of  them. 

The  authority  of  the  husband  was  to  manage  her  business  of 
keeping  a  hotel.  She  never  authorized  specially,  nor  had  she 
knowledge  of  the  arrangement  with  the  plaintiff  into  which  her 
husband  had  entered. 

To  support  the  case  of  the  plaintiff,  which  was  against  the  wife 
as  well  as  the  husband,  it  is  necessary  to  bring  the  contract 
of  the  husband  within  the  scope  of  the  general  authority 
to  bind  her  in  matters  appertaining  to  the  management  of  the 
hotel  business.  No  testimony  was  delivered  upon  the  trial  for  the 
purpose  of  showing  that  the  business  of  hotel  keeping  included 
supplying  teams  to  guests,  or  if  so,  upon  what  terms. 

The  court  below  must  have  held  that  it  was  a  matter  of  judicial 
knowledge  that  the  contract  was  made  concerning  a  matter  within 
range  of  the  business  in  which  the  wife  was  engaged.  Now,  the 
legal  liability  of  a  hotel-keeper  is  to  furnish  lodging  and  food  to 
guests  and  their  accompanying  horses.  There  is  no  legal  liability 
to  furnish  horses  or  other  means  of  locomotion.  I  am  at  a  loss 
to  find  any  ground  for  holding  that  this  is  within  the  occupation 
of  the  wife  in  this  case. 

It  is  said  in  the  brief  of  plaintiff's  counsel  that  it  is  a  matter  of 
common  knowledge  that  no  well-regulated  hotel  could  do  business 
and  accommodate  the  public  without  making  some  such  arrange- 
ment as  this,  and  that  it  is  a  well-known  occurrence  for  a  guest 
who  wishes  a  horse  and  carriage  to  apply  at  the  desk,  and  an  order 
is  sent  to  the  livery  stable  keeper,  who  furnishes  the  equipment  to 
a  man  he  does  not  see,  and  so  has  no  means  of  ascertainining  his 
responsibility.  He  therefore  says  that  a  contract  like  the  one 
found  by  the  court  is  a  natural  and  necessary  one  for  the  protection 
of  the  livery-man. 


Chap.  Ill  ]  Beockway  vs.  Mulli^t.  ^1 

Suppose  this  be  admitted  and  it  be  for  the  purposes  of  this  argu- 
ment assumed  that  this  is  such  a  familiar  transaction,  that  it  rests 
■within  the  cognizance  of  every  one  without  proof  of  the  fact,  yet 
I  do  not  think  it  makes  in  favor  of  the  plaintiff's  case.  It  only 
shows  that  the  hotel,  for  the  convenience  of  a  guest,  communicates 
with  some  one  who  furnishes  the  carriage.  So  also  the  communi- 
cation is  made  with  an  express  company  or  railroad  company  to 
take  charge  of  a  guest's  luggage.  So  in  both  instances,  the  charges 
are  paid  at  the  desk  of  the  hotel  for  the  guest  and  put  in  his  bill. 
In  neither  is  it  known  that  the  proprietor  of  the  hotel  assumes  the 
character  of  an  expressman  or  hirer  of  a  vehicle,  or  any  responsi- 
bility for  the  performance  of  the  duties  of  either.  And  this  usage 
as  claimed  to  exist  within  the  knowledge  of  every  one,  makes  the 
gnest,  and  not  the  hotel  keeper,  the  bailee. 

If  this  be  so,  then  if  the  hiring  in  this  case  was,  as  is  claimed, 
a  hiring  to  the  hotel  keeper,  it  was  not  within  the  scope  of  his 
business,  and  so  did  not  bind  the  principal.  If  it  was  a  hiring  to 
the  guest,  then  the  contract  of  the  husband  encounters  a  legal 
difficulty  in  the  shape  of  the  statute  of  frauds.  It  was  a  verbal 
contract  to  answer  for  the  default  or  miscarriage  of  another. 
Kirkham  vs.  Marter,  2  Barn.  &  Aid.  613;  Brown  Stat.  Frauds,  § 
155.  Therefore,  to  recover  at  all,  it  was  essential  for  the  plaintiff 
to  stand  upon  a  usage  for  hotel  keepers  to  hire  horses  to  their 
guests.  For  it  is  perceived  that  if  he  was  the  bailee,  the  letting  to 
the  guest  was  a  new  bailment  in  which  he  was  the  bailor.  If  a 
part  of  the  business  of  a  hotelkeeper  is  to  let  horses  to  his  guests, 
and  by  reason  of  this  the  hotel  proprietor  is  bound  for  a  hiring  of 
a  horse  for  that  purpose,  with  a  contract  extending  the  liability  of 
the  hirer  to  an  absolute  insurance,  it  is  difficult  to  perceive  the 
limit  of  the  agent's  authority  in  this  direction. 

If  he  can  hire,  he  can  purchase.  He  can  establish  a  stable  with 
an  unlimited  number  of  animals,  and  for  their  price  and  food  and 
attendance,  the  proprietor,  although  ignorant  of  the  act,  will,  by 
reason  of  the  general  authority  to  manage  the  business  of  the  hotel 
given  to  the  agent,  become  responsible.  I  think,  as  the  case  stands 
upon  the  record,  with  no  proof  that  the  transaction  concerning 
which  this  contract  was  made  was  incident  to  the  hotel  business, 
and  with  the  fact  that  the  proprietress  was  ignorant  of  the  transac- 
tion, there  is  nothing  to  support  the  agent's  authority  to  bind  her 
by  such  an  agreement.     So  far  as  appears,  it  was  neither  within  the 


422  Cases  on  Agency.  [Book  II 

real  authority  nor  the  appearance  of  authority  which  she  had  con- 
ferred upon  him. 
Let  the  judgment,  so  far  as  it  affects  the  defendant  Josephine 

£L  Brockway,  be  set  aside. 

Judgment  set  aside. 


(11  Colorado,  391.) 

VESCELIUS  vs.  MARTIN. 

(Supreme  Court  of  Colorado,  April,  1888.) 

Action  to  recover  a  commission  for  finding  a  purchaser  for 
appellant's  business.  The  agreement  to  pay  the  commission  was 
made  with  appellant's  husband  who  managed  the  business  for  her. 
Plaintiff  recovered  and  defendant  appeals. 

Messrs.  Tilford,  Oilmore  and  Rhodes,  for  appellant. 
Mr.  M.  B.  Carpenter,  for  appellee. 

De  France,  0.  The  evidence  in  this  case  fails  to  disclose  that 
W.  S.  Vescelius  was  possessed  of  authority  from  his  wife,  the 
defendant,  to  make  the  contract  sued  upon.  Without  such  proof 
the  action  must  fail.  The  most  that  can  be  claimed  for  the  evi- 
dence in  this  respect  is  that  the  husband  was  agent  for  the  wife  in 
conducting  a  retail  grocery  business.  Granting  the  fact  that  his 
agency  was  a  general  one  for  this  purpose,  it  does  not  follow  that 
he  had  authority  to  sell  out  the  entire  business,  stock  and  fixtures 
in  one  transaction.  This  authority  is  not  to  be  implied  from  such 
an  agency.  But,  if  it  were,  the  further  authority  in  such  agent  to 
employ  some  one  else  to  do  so  at  the  cost  of  his  principal  cannot 
be  implied  therefrom.  It  is  not  necessary  to  notice  the  other 
questions  discassed  by  counsel.  The  evidence  being  insufficient  to 
support  the  same,  the  judgment  should  be  reversed  and  the  cause 
remanded. 


Ohap.  Ill]  Ieon  Mine  ys.  Nat'l  Bank.  423 

(39  MicniaAN,  644.) 

NEW   YORK  IRON  MINE  vs.  FIRST  NATIONAL  BANK 
OF  NEGAUNEB. 

(Supreme  Court  of  Michigan,  October,  1878.) 

Action  by  the  bank  against  the  iron  mine  npon  four  promissory 
notes,  three  of  $5,000,  to  the  order  of  Wetmore  &  Bro.,  signed 
"New  York  Iron  Mine,  by  W.  L.  Wetmore,"  and  one  for  $1,000 
made  by  the  Munising  Iron  Company,  to  the  order  of  New  York 
Iron  Mine,  signed  by  "  W.  L.  Wetmore,  President,"  and  endorsed 
by  the  iron  mine  by  Wetmore.  The  New  York  Iron  Mine  was  a 
corporation  whose  works  were  at  Ishpeming,  Mich.  Samuel  J. 
Tilden  of  New  York  was  the  chief  stockholder,  and  Wetmore  held 
the  rest  of  the  stock  except  some  nominal  holdings  necessary  to 
make  up  the  board  of  directors.  Wetmore  managed  the  mine, 
hired  help  and  transacted  all  business  at  Ishpeming,  and  Mr. 
Tilden  looked  after  the  finances  in  New  York,  and  this  arrange- 
ment had  continued  about  14  years.  Wetmore  had  paid  the 
expenses  of  operations  by  drafts  drawn  upon  Tilden  and  in  this 
way  had  paid  out  over  $3,000,000.  The  defense  was  a  lack  of 
authority  in  Wetmore  to  make  or  indorse  this  paper.  Verdict 
below  for  plaintiff  and  defendant  brought  error. 

W.  P.  Healy  and  0.  V.  N.  Lothrop,  for  plaintiff  in  error. 
Ball  <&  Owen  and  Ashley  Pond,  for  defendant  in  error. 

CooLEY,  J.  (After  stating  the  facts. )  It  was  not  disputed  by  the 
defense  that  the  corporation  as  such  had  power  to  make  the  notes 
in  suit.  The  question  was  whether  it  had  in  any  manner  delegated 
that  power  to  Wetmore.  We  cannot  agree  with  the  plaintiff  that 
the  mere  appointment  of  general  agent  confers  any  such  power. 
White  vs.  Westjjort  Cotton  Mfg.  Co.,  1  Pick.  (Mass.)  215,  11  Am. 
Dec.  168,  is  not  an  authority  for  that  position,  nor  is  any  other 
case  to  which  our  attention  has  been  invited.  In  McCullough  vs. 
Moss,  5  Denio  (N.  Y.)  567,  the  subject  received  careful  attention, 
and  it  was  held  that  the  president  and  secretary  of  a  mining  com- 
pany, without  being  authorized  by  the  board  of  directors  so  to  do, 
could  not  bind  the  corporation  by  a  note  made  in  its  name. 
Murray  vs.  Hast  India  Compayiy,  5  B.  &  Aid.  204;  Benedict  vs. 
Lansing,  5  Denio  (N.  Y.)  283;  and   The  Floyd  Acceptances,  7 


424  Cases  o:s^  Agexcy.  [Book  II 

Wall.  (IT.  S.)  CG6,  are  anthoritiea  in  support  of  the  same  view. 
The  plaintiff,  then,  cannot  rest  its  case  on  the  implied  authority  of 
the  general  agent;  the  issuing  of  promissory  notes  is  not  a  power 
necessarily  incident  to  the  conduct  of  the  business  of  miniug,  and 
is  so  susceptible  of  abuse  to  the  injury,  and,  indeed,  to  the  utter 
destruction  of  a  corporation,  that  it  is  wisely  left  by  the  law  to  be 
conferred  or  not  as  the  prudence  of  the  board  of  direction  may 
determine. 

But  it  was  further  insisted  on  the  part  of  the  plaintiff,  that 
though  Wetmore  may  never  have  had  the  corporate  authority  to 
make  notes  in  the  corporate  name,  yet,  that  the  course  of  business 
was  such,  with  the  express  or  implied  assent  of  Mr.  Tilden,  as  to 
lead  the  public  to  suppose  that  his  authority  was  ample,  and  that 
this  course  of  business  should  be  conclusive  in  favor  of  those  who 
had  taken  the  notes  in  good  faith  relying  upon  it.  In  support  of 
this  position,  evidence  was  given  that  Wetmore  was  in  the  practice 
of  taking  notes  from  the  creditors  of  the  corporation,  and  procur- 
ing them  to  be  discounted  on  his  indorsement  as  general  agent, 
and  it  appeared  that  the  note  of  $1,000  counted  on  in  this  case 
was  made  for  a  balance  remaining  unpaid  on  a  much  larger  note 
made  by  the  Munising  Iron  Co.,  payable  to  the  order  of  defendant 
and  discounted  by  the  plaintiff.  And  on  this  part  of  the  case  we 
are  of  opinion  that  enough  appeared  to  warrant  the  jury  in  finding 
that  the  practice  of  Wetmore  to  indorse  the  paper  of  the  company 
for  collection  or  discount  was  known  to  Mr.  Tilden  and  not  objected 
to  by  him;  that  parties  taking  such  paper  had  a  right  to  believe 
the  indorsement  was  authorized,  and  that  it  was  made  in  the  inter- 
est of  defendant,  and  not  in  fraud  of  its  rights.     ♦     *     ♦ 

But  it  is  further  insisted  on  the  part  of  the  plaintiff  that  the 
defendant  corporation  is  chargeable  with  negligence  in  suffering 
Wetmore  to  manage  the  business  independently,  as  he  did  for  so 
long  a  period,  and  that  this  negligence  was  so  gross  and  so  likely 
to  mislead  as  to  call  for  the  application  of  the  familiar  and  very 
just  principle,  that  where  one  of  two  innocent  parties  must  suffer 
from  the  dishonesty  of  a  third,  that  one  shall  bear  the  loss  who  by 
his  negligence  haa  enabled  the  third  to  occasion  it.  Merchants' 
Bank  vs.  State  Ba7ik,  10  Wall.  (U.  S.)  604;  Bank  of  United  States 
vs.  Davis,  2  Hill  (N.  Y.)  465;  Holmes  vs.  Trumper,  22  Mich.  427- 
434,  7  Am.  Rep.  661;  Farmers',  etc.,  Bank  vs.  Butchers',  etc., 
Bank,  16  N.  Y.  133;   Wetland  Canal  Co.  vs.  Hathaway,   8  Wend. 


Ohap.  Ill]        Ieon  Mine  ts.  Nat'l  Bank.  425 

(N.  Y.)  480,  24  Am.  Dec.  51;  New  York  &  N.  U.  R.  R.  Co.  vs. 

Schuyler,  34  N.  Y.  30. 

While  the  principle  invoked  is  a  very  jnst  and  proper  one,  it  is 
one  that  must  be  applied  with  great  circumspection  and  caution. 
Any  person  may  be  said  to  put  another  in  position  to  commit  a 
fraud  when  he  confers  upon  him  any  authority  which  is  susceptible 
of  abuse  to  the  detriment  of  others;  but  if  the  authority  is  one 
with  which  it  is  proper  for  one  man  to  clothe  another,  negligence 
cannot  be  imputed  to  the  mere  act  of  giving  it.  Any  one  who 
entrusts  to  another  his  signature  to  a  written  instrument  furnishes 
him  with  the  means  of  perpetrating  a  fraud  by  an  unauthorized 
alteration  or  other  improper  use  of  it.  But  if  the  instrument  was 
a  proper  and  customary  instrument  of  business,  and  has  been  issued 
without  fraudulent  intent  in  a  business  transaction,  there  is  no 
more  reason  for  imposing  upon  the  maker  the  consequences  of  a 
fraudulent  use  of  it  than  there  is  for  visiting  them  upon  any  third 
person.  In  other  words,  it  is  not  the  mere  fact  that  one  has  been 
the  means  of  enabling  another  to  commit  a  fraud  that  shall  make 
him  justly  chargeable  with  the  other's  misconduct;  but  there  must 
be  that  in  what  he  has  done  or  abstained  from  doing  that  may 
fairly  be  held  to  charge  him  with  neglect  of  duty.     *     *     * 

But  before  the  maxim  which  the  plaintifE  invokes  can  be  applied 
to  the  case,  it  is  necessary  to  determine  not  only  that  fault  is  im- 
putable to  the  defendant,  but  also  that  the  plaintiff  is  free  from 
negligence.  There  must  be  one  innocent  party  and  one  negligent 
party  before  the  requirements  of  the  maxim  are  answered;  and  the 
conduct  of  the  plaintiff  is  therefore  as  important  as  that  of  the 
defendant.  Was  the  plaintiff  in  this  case  free  from  negligence  in 
discounting  the  three  $5,000  notes?  In  law  the  officers  of  the  bank 
must  be  held  to  have  known  that  Mr.  Wetmore  had  no  right  to 
make  such  paper  without  express  authority,  and  we  look  in  vain 
for  any  evidence  that  they  demanded  proof  of  such  authority,  or 
extended  their  inquiries  beyond  the  agent  himself.  Moreover  there 
was  that  on  the  face  of  these  notes  to  suggest  special  caution;  they 
were  made  by  Mr.  Wetmore  in  one  capacity  to  himself  and  his 
associate  in  another  capacity,  and  they  indicated,  or  at  least  sug- 
gested, an  interest  on  his  part  in  making  them  which  was  adverse 
to  the  interest  of  his  principal.  The  notes  also  bore  the  largest 
interest  admissible  under  our  statutes;  and  this  f;iet,  in  the 
case  of  a  corporation  whose  credit  was  such  that  its  paper  would 


426  Cases  on  Aqekct.  [Book  II 

be  readily  disconnted  and    having   its  office   in  the  city  of  New 
York,  might  well  have  arrested  attention. 

We  do  not  think  that  when  the  bank  discounted  such  paper 
without  inquiry  into  the  authority  of  Wetmore,  it  gave  such 
evidence  of  prudence  and  circumspection  as  placed  it  in  position 
to  complain  of  Mr.  Tilden's  course  of  business  as  negligent.  A 
fair  statement  of  the  case  for  the  plaintiff  is  that  both  parties  have 
been  over  trustful  in  their  dealings  with  Mr.  Wetmore;  the  defend- 
ant not  more  so  than  the  plaintiff.  Unfortunately  for  the  plaintiff, 
the  consequences  of  the  overtrust  have  fallen  upon  its  shoulders. 

The  circuit  judge,  in  his  instructions  to  the  jury  assumed  that 
there  was  evidence  in  the  case  from  which  they  might  find  that 
Wetmore  was  held  out  to  the  public  as  possessing  the  authority  ha 
assumed  to  exercise.  We  find  no  such  evidence,  and  there  must 
therefore  be  a  new  trial.  The  case  of  the  $1,000  note  is  different, 
as  already  explained.       ♦      ♦      • 

Eeversed. 

Note. — See,  also,  Perkins  vs.  Boothby,  71  Me.  91;  Rossitervs.  Rossiter, 
8  Wend.  (N.  Y.)  494,  24  Am.  Dec.  62;  Sewanee  Mining  Co.  vs.  McCall,  S 
Head  (Tenn.)  619. 


Chap.  I]  Thomas  vs.  Josllh.  ^7 


BOOK     III. 

OF  THE  EXECUTION  OF  THE  AUTHORITY. 


CHAPTER    I. 

IN  GENERAL. 


(30  Minnesota,  388.) 

THOMAS  vs.   JOSLIN. 

f  Supreme  Court  of  Minnesota,  May,  188S.) 

Appeal  by  plaintiff  from  an  order  of  the  district  coart  refusing  a 
new  trial,  the  action  having  been  dismissed  at  the  close  of  the 
plaintiff's  evidence. 

W.  P.  Clough,  for  appellant. 
McNair  <£  GilfUan,  for  respondent. 

Beeet,  J.  This  action  is  brought  to  enforce  specific  perform- 
ance of  an  agreement  to  sell  and  convey  certain  land  alleged  to 
have  been  executed  by  Whitney  as  agent  of  defendant,  by  whom 
the  land  was  owned. 

1.  As  to  the  fact  of  agency,  we  are  of  opinion  that  the  letters 
introduced  upon  the  trial,  and  which  compose  all  the  evidence  in 
the  premises,  constitute  Whitney  defendant's  agent  to  sell  the  land 
for  $2,500  cash,  subject  to  Miller's  lease,  and  for  a  compensation 
of  $50.  They  do  not  purport  to  be  a  contract  directly  with  the 
plaintiff,  the  alleged  vendee,  to  sell  to  him,  but  an  authority  to 
Whitney  to  enter  into  a  contract  of  sale  with  some  one. 

2.  The  seal  which  Whitney  affixed  to  the  agreement  was 
unauthorized,  because  Whitney's  authority  was  not  under  seal;  but 
It  may  be  rejected  as  a  separable  excess  of  authority,  and  the  agree- 


428  Cases  on  Aqenoy,  [Book  III 

ment  stand  as  a  simple  contract.  Dickerman  vs.  Ashton,  21  Minn. 
538;  Long  vs.  BarfwcII,  34  N.  J.  Law,  116,  (an/e,  p.  92) ;  Lawre7ice 
vs.  Taylor,  5  Hill,  107. 

3.  The  agreement  executed  assumes  to  bind  defendant  to  con- 
vey the  land  "  in  fee  simple,  and  with  a  perfect  title,  free  from  all 
incumbrances."  This  is  in  excess  of  the  authority  conferred  upon 
Whitney  to  make  a  sale  subject  to  the  Miller  lease.  "  Where  there 
is  a  complete  execution  of  a  power,  and  something  ex  ahundanti 
added,  wliich  is  improper,  there  the  execution  shall  be  good,  and 
only  the  excess  void;  but  where  there  is  not  a  complete  execution 
of  a  power,  or  where  the  boundaries  between  the  excess  and  execu- 
tion are  not  distinguishable,  it  will  be  bad."  Alexander  vs.  Alex- 
ander,  2  Ves.  640,  644;  E  well's  Evans  on  Agency,  170;  Story  on 
Agency,  §§  165-lt'8;  Sugden  on  Powers,  c.  9,  §  2.  The  instru- 
ment executed  by  Whitney  is  not  an  agreement  for  a  sale  and  con- 
veyance subject  to  the  Miller  lease,  with  something  superadded  in 
excess  of  Whitney's  authority,  in  which  case  the  excess  might  be 
rejected,  and  the  rest  of  the  agreement  sustained.  But  the  thing 
ostensibly  contracted  for  is  entirely  different  from  that  authorized, 
and  therefore  the  purported  agreement  is  not  **a  complete  execu- 
tion of  the  power,"  and  by  consequence,  not  the  agreement  of 
Whitney's  constituent,  the  defendant.  Upon  the  facts  as  they 
now  appear,  the  agreement  is,  therefore,  under  the  rule  above 
enunciated,  bad  and  not  enforceable.  Order  aflQrmed. 


Chap.  II  ]  McOluee  ys.  Hekeinq.  429 


CHAPTER  II 

OF  THE  EXECUTION  OF  SEALED  INSTEUMENTS, 


(70  Missouri  18,  35  Am.  Ebp.  404.) 

McCLURE  vs.  HERRING. 

(Supreme  Court  of  Missouri,  October,  1879. J 

Ejectment.     The  opinion  states  the  facta.     The  defendant  had 
Judgment  below. 

S.  P.  Huston,  for  appellant. 

F.  11.  Earner  and  T.  D.  Neal,  for  respondent. 

Henky,  J.  The  plaintiff  brought  snit  in  the  Harrison  Oircnit 
Court  to  its  March  term,  1877,  against  defendant  for  the  possession 
of  the  southwest  quarter  of  section  20,  township  66,  range  27,  in 
said  county.  The  petition  was  in  the  ordinary  form  of  petition  in 
ejectment.  The  defendant's  answer  was  a  general  denial.  The 
plaintiff  read  in  evidence,  to  maintain  the  issues  on  his  part,  a 
United  States  patent,  conveying  the  land  to  Leo  Tarlton.  Plaintiff 
then  read  in  evidence  a  power  of  attorney  from  Leo  Tarlton  and  wife 
to  Thomas  W.  Hawkins,  authorizing  him  as  their  attorney  in  fact,  in 
their  names,  to  sell  and  dispose  of,  in  fee  simple,  all  lands  of 
which  they  were  seized  in  the  counties  of  Atchison,  Andrew,  Har- 
rison, Grundy  and  Gentry  in  the  State  of  Missouri,  as  well  as 
other  lands  situate  and  lying  in  the  State  of  Missouri,  and  for 
them,  in  their  names  and  as  their  act  and  deed,  to  sign,  seal,  exe- 
cute and  deliver  such  deeds  and  conveyances  for  the  sale  and 
disposal  of  any  part  thereof,  as  their  said  attorney  should  think  fit. 
Plaintiff  next  offered  in  evidence  a  certified  copy  of  the  record  of  a 
deed  from  Thomas  W.  Hawkins,  for  himself  and  Leo  Tarlton  and 
wife,  to  Alfred  W.  Lamb,  which  deed  was  as  follows,  affecting 
said  lands,  towit: 

"Know  all  men  by  these  presents,  that  I,  Thomas  W.  Hawkins 
of  Marion  county,  state  of  Missouri,  for  myself,  and  as  attorney 
for  Leo  Tarlton  and  Mrs.  G.  Agusta  Tarlton,  his  wife     •     •     • 


430  Oases  on  Agency.  [Book  III 

by  their  duly  anthorized  letters  of  attorney,  nnder  their  hands  and 
seals,  in  consideration  $1,850,  to  ns  paid  by  Alfred  W.  Lamb  of 
Marion  county,  state  of  Missouri,  do  sell  and  convey  to  said 
Alfred  W.  Lamb,  and  his  heirs  forever,  the  following  described 
tracts  or  parcels  of.  land  lying  and  situate  in  the  county  of  Harri- 
son, and  state  of  Missouri,  to  wit:  The  *  *  ♦  southwest 
quarter  of  section  20,  township  66,  range  27  *  *  *  To  have 
and  to  hold  the  said  tracts  or  parcels  of  lands,  with  all  privileges, 
etc.,  to  said  grantee  and  his  heirs  forever.  And  we,  the  said  Leo 
Tarlton  and  G.  Agusta  Tarlton,  do  covenant  with  said  grantee  and 
his  heirs  that  we  are  rightly  seized  in  fee  simple  of  said  tracts  or 
parcels  of  land,  etc.,  and  that  we  and  our  heirs  will  warrant  the 
said  premises  to  said  grantee  and  his  heirs  forever  against  the  law- 
ful claims  of  all  persons.  In  witness  whereof,  I,  Thomas  W.  Haw- 
kins, in  my  own  right,  have  hereunto  set  my  hand  and  seal,  and  as 
attorney  for  said  Leo  Tarlton  and  Mrs.  G.  Agusta  Tarlton,  have 
hereunto  set  their  hands  and  seals. 

"  Thomas  W.  Hawkins,  [  L.  S.] 
"Leo  Tarlton,  [L.  S.] 

"  G.  Agusta  Tarlton,  [  L.  S.] 
"By  Thomas  W.  Hawkins,  their  Attorney  in  fact." 
Defendant  by  his  attorneys,  objected  to  the  introduction  of  said 
deed,  because:  1st,  It  was  the  deed  of  the  attorney,  Hawkins,  and 
not  that  of  Tarlton  and  wife;  2nd.  It  is  ineffectual  as  a  conveyance 
by  Tarlton  and  wife,  of  any  title  owned  by  them  in  the  land 
in  controversy;  3d.  The  power  of  attorney  under  which  the  deed 
was  made  did  not  sufficiently  designate  the  land  to  be  conveyed  by 
the  attorney;  4th.  The  deed  does  not  purport  to  be  that  of  the 
principal,  nor  to  convey  the  title  of  the  principal,  but  only  that  of 
the  attorney.  The  court  sustained  the  defendant's  objections,  and 
rejected  the  deed  as  evidence,  to  which  plaintiff  excepted,  and 
leave  to  set  aside  nonsuit  taken  being  refused,  plaintiff  brings  this 
case  here  by  appeal. 

Mr.  Washburn,  in  his  work  on  Real  Property  (vol.  2,  2d  ed., 
576),  reviews  the  cases  on  the  subject  presented  for  consideration 
here  by  the  action  of  the  court  in  excluding  the  deed  from  the 
jury,  and  admits  that  there  is  a  conflict  of  opinion,  but  states  the 
doctrine  deducible  from  them  thus:  "The  leading  doctrine  run- 
ning through  them,  though  not  always  applied,  seems  to  be  that 
to  make  such  a  deed  valid,  the  instrument  itself  must  in  terms 
show  that  it  is  the  deed  of  the  principal,  that  he  makes  the  grants 


Chap.  II  ]  McClurb  vs.  Hereino.  431 

and  covenants,  and  that  the  seal  is  his.  The  instrument,  in  some 
part,  must  also  show  that  its  execution  by  the  principal  was  done 
by  the  attorney  named.  If  this  all  appears  clearly  in  any  part  of 
the  instrument,  the  precise  form  or  arrangement  of  the  words  does 
not  seem  to  be  essential." 

In  Elwell  vs.  Shaw,  16  Mass.  42,  47,  8  Am.  Dec.  126,  reported 
also  in  Am.  Lead.  Cas.,  as  a  leading  case  on  the  subject,  the  deed 
recited  the  power  of  attorney  to  Joshua  Elwell,  and  then  proceeded 
as  follows:  "  Know  ye  that  I,  the  said  Joshua,  by  virtue  of  the 
power  aforesaid,  etc.,  do  hereby  bargain,  grant,  sell  and  convey, 
etc.,"  and  concluded:  "  In  testimony  whereof,  I  have  hereunto  set 
the  name  and  seal  of  said  Jonathan,  this,  etc.  Joshua  Elwell. 
(Seal.)'*  The  body  of  the  deed  there  is  similar  in  some  respects  to 
the  deed  in  this  case,  but  in  the  execution  of  the  deed  there  is  a 
marked  and  important  difference.  Here  the  names  of  the  prin- 
cipals are  signed  as  grantors,  and  their  seals  attached,  while  neither 
in  the  body  nor  in  the  execution  of  the  deed  in  Uhvell  vs.  Shaw, 
does  the  principal  appear  as  grantor.  In  Mussey  vs.  Scott,  7  Cush. 
(Mass.)  216,  54  Am.  Dec.  719,  Metcalf,  J.  observes:  "But  how- 
ever clearly  the  body  of  the  deed  may  show  an  intent  that  it  shall 
be  the  act  of  the  principal,  yet  unless  it  is  executed  by  his  attorney 
for  him,  it  is  not  his  deed,  but  the  deed  of  the  attorney  or  no  one." 
On  that  principle  alone  Elwell  vs.  Shaw,  may  be  maintained,  and 
there  are  numerous  other  adjudged  cases  which  were  controlled  by 
that  principle. 

Fowler  vs.  Shearer,  7  Mass.  15,  is  frequently  cited  in  discussions 
on  this  subject.  There  John  Fowler,  the  husband,  gave  his  wife, 
Abigail,  a  power  of  attorney  to  execute  a  deed  for  land.  She 
made  a  conveyance  as  follows:  "Know  ye  that  I,  Abigail  Fowler, 
of  Palmer,  etc.,  and  also  as  attorney  to  John  Fowler,  etc.,  in  con- 
sideration of,  etc.,  paid  by  Daniel  Shearer,  of  Palmer,  have 
given,  granted,  and  by  these  presents  do  give,  grant,  etc."  The 
language  of  the  remainder  of  the  deed  purported  to  be  her  convey- 
ance and  her  covenants.  The  instrument  concluded:  "  In  wit- 
ness whereof,  I  have  hereunto  set  my  hand  and  seal,  this  7th  day 
of  August,  1805.  Abigail  Fowler.  (  Seal.)"  The  court  held  that 
it  was  not  the  deed  of  the  husband.  As  in  Elwell  vs.  Shaw,  the 
principal  did  not  execute  it,  and  therein  both  differ  from  the  case 
at  bar. 

Harper  vs.  Hampton,  1  Harr.  &  J.  (Md.)  709,  was  a  case  in  which 
the  attorney  signed  his  own  name  as  attorney  for  his  principal,  and 


433  Oases  on  Agency.  [Book  III 

it  was  held  to  be  tlie  deed  of  the  attorney,  and  not  of  the  principal. 
The  contrary,  however,  was  held  by  this  court  in  Martin  vs.  Almond, 
25  Mo.  133,  and  while  the  adjudications  on  the  subject  are  not 
harmonious,  we  think  the  doctrine  of  that  case  fully  sustained  by 
the  weight  of  authority. 

There  is  a  general  disposition  to  relax  the  rigid  rules  of  the 
common  law  in  regard  to  conyeyances.  The  formality  and  exact- 
ness formerly  deemed  necessary  are  not  now  required.  There  is  a 
disposition  to  effectuate  the  intention  of  the  parties,  where  that  can 
certainly  be  ascertained  from  the  deed.  But  to  return  to  the  main 
question.  Shanks  vs.  Lancaster,  6  Gratt.  (Va.)  110,  118,  50  Am. 
Dec.  108,  is  a  case  directly  in  point.  "  The  deed  made  by  the 
attorney  was  in  the  name  of  Abraham  Beckner,  attorney  in  fact  for 
Jacob  Beckner  and  Catherine,  his  wife,  of  the  first  part."  It  pro- 
ceeded in  the  same  style  to  convey  the  land,  and  in  the  same  style 
he  covenanted  for  himself,  his  heirs,  and  executors,  in  behalf  of 
said  Jacob  Beckner  and  Catherine,  his  wife,  under  the  authority  of 
ft  power  of  attorney  duly  executed,  and  of  record,  to  warrant  the 
title  to  the  plaintiff  free  from  the  claims  of  himself  and  his  heirs, 
and  from  the  claims  of  Jacob  Beckner  and  wife,  and  their 
heirs,  and  it  concluded:  *'In  witness  whereof,  the  said  Abraham 
Beckner,  attorney  in  fact,  for  Jacob  Beckner  and  Catherine,  his 
wife,  as  aforesaid,  has  hereunto  set  his  hand  and  seal,  etc.  Jacob 
Beckner  (seal)  and  Catherine,  his  wife  (seal),  by  Abraham  Beck- 
ner (seal)  their  attorney  in  fact."  The  court  held  the  deed 
sufficient  to  pass  the  title  of  Jacob  Beckner  to  the  grantee. 

In  Hale  vs.  Woods,  10  N.  H.  470,  34  Am,  Dec.  176,  Daniel  and 
Zachariah  King  were  joint  owners  of  a  tract  of  land,  and  Daniel 
was  empowered  by  Zachariah  to  sell  and  convey  his  interest.  He 
sold  the  land  and  made  the  following  conveyance:  **I,  Daniel 
King,  as  well  for  myself,  as  attorney  for  Zachariah  King,  doth  for 
myself  and  said  Zachariah,  remise,  release  and  forever  quit- 
claim the  premises  (describing  them)  together  with  all  the  estate, 
etc.,  of  us,  the  said  Daniel  and  said  Zachariah,  which  we  now  have, 
etc.,  and  we,  the  said  Daniel  and  said  Zachariah,  do  hereby,  for 
ourselves,  our  heirs  and  executors,  covenant  that  the  premises  are 
free  from  all  incumbrances,  and  that  the  grantee  may  quietly  enjoy 
the  same  without  any  claim  or  hindrance  from  us,  or  any  one 
claiming  under  us,  or  either  of  us.  In  witness,  whereof,  we,  the 
BaiJ  Daniel,  for  himself,  and  as  attorney  aforesaid,  have  hereunto 
set  our  hands  and  seal,  etc.     (Signed)  Daniel  King,  and  also  Daniel 


Chap.  II]  McClueb  vs.  Herring.  433 

King,  attorney  for  Zachariah  King,   being  duly  antLorized  as 
appears  of  record,"  with  seals  affixed  to  each  signature. 

The  court  held  the  poAvcr  properly  executed,  and  that  the  deed 
passed  the  title  of  Zachariah.  Upham,  J.,  said:  ''The  covenants 
in  this  case  in  the  deed  are  clearly  the  covenants  of  the  principal; 
and  we  think  from  the  terms  used,  the  grant  purports  to  be  the 
act  of  the  principal.  The  grant  is  for  said  Daniel  and  Zachariah, 
and  of  all  the  interest  which  we  now  have,  or  have  heretofore  had 
in  the  premises.  If  these  terms,  together  with  the  covenants, 
purport  a  conveyance  of  the  interest  of  the  principal,  the  execution 
of  the  deed  would  seem  to  be  sufficient  to  effect  the  intent  of  the 
instrument.'* 

Those  cases  are  not  distinguishable  in  principle  form  from  the 
case  at  bar,  and  the  facts  in  each  case  were  such  as  to  raise  the 
precise  question  presented  by  this  record.  See,  also,  Bidterfield 
vs.  Beall,  3  Ind.  203;  Varnum  vs.  Evans,  2  McMullan,  (S.  Car.) 
409.  In  Townsend  vs.  Hubbard,  4  Hill,  (N.  Y.)  351,  359,  Wal- 
worth, Ch.,  said:  *'  To  bind  the  principal  by  deed,  no  particular 
form  of  words  is  necessary,  provided  it  appears  upon  the  face  of 
the  instrument  that  it  was  intended  to  be  executed  as  the  deed  of 
the  principal,  and  that  the  seal  affixed  to  the  instrument  is  his 
seal,  and  not  the  seal  of  the  attorney  or  agent  merely.'* 

In  Hunter's  Admr.  vs.  Miller's  Exrs.,  5  B.  Monr.  (Ky.)  612, 
620,  the  court  laid  down  the  following,  which  Messrs.  Hare  and 
Wallace  in  their  note  to  Elwell  vs.  Shaw,  say  is  a  reasonable  rule: 
**  If  it  clearly  appears,  on  the  face  of  the  instrument,  who  is  intended 
to  be  bound,  and  if  the  mode  of  execution  be  such  as  that  he  may  be 
bound,  the  necessary  consequence  of  the  universal  principle  appli- 
cable to  contracts  is  that  he  is  bound,  and  that  if  such  appears  to  be 
the  intention  of  the  parties,  he  alone  is  bound.'*  Here  in  the 
body  of  the  deed,  Hawkins  declares  that  he  makes  the  conveyance 
as  attorney  for  Leo  and  G.  Agusta  Tarlton,  under  their  power  of 
attorney,  and  said  Tarlton  and  wife,  in  the  body  of  the  deed  cove- 
nant with  Lamb,  the  grantee,  that  they  are  rightfully  seized  in  fee 
simple  of  the  lands,  and  that  they  and  their  heirs  will  warrant  the 
premises  to  said  grantee  and  his  heirs  forever,  etc.  The  considera- 
tion, $1,850,  is  acknowledged  in  the  deed  to  have  been  paid  to  "  us," 
not  to  the  attorney  alone.  The  names  of  the  principals  were  sever- 
ally signed  to  the  deed,  with  a  seal  to  each,  **  By  Thomas  W. 
Hawkins,  their  attorney  in  fact." 
28 


434  Cases  o:s  Aqbkcy.  [Book  III 

The  manner  in  "whicli  the  deed  was  executed,  the  covenant 
entered  into  by  Tarleton  and  his  wife  that  they  would  warrant  the 
title  to  Lamb^  etc. ;  the  declaration  in  the  deed  that  Hawkins  is 
acting  for  the  principals,  naming  them,  by  virtue  of  their  power  of 
attorney;  the  acknowledgement  of  the  receipt  of  the  money  by 
"us,"  unmistakably  show  that  it  was  the  deed  of  the  principals; 
and  as  this  all  appears  clearly  in  the  instrument,  *'  the  precise  form 
or  arrangement  of  the  words  does  not  seem  to  be  essential."  A 
review  or  even  brief  notice  of  all  the  adjudications  on  this  subject, 
besides  requiring  immense  labor,  would  only  serve  to  show  the  con- 
flict of  the  authorities,  and  the  very  nice  distinctions  occasionally 
drawn  either  to  uphold  or  defeat  a  conveyance,  but  we  are  of 
opinion  that  a  large  majority  of  the  courts  in  which  the  most  rigid 
rules  on  the  subject  are  maintained,  would  sustain  this  deed.  The 
court  erred  in  excluding  it  from  the  jury  as  evidence  of  title  in 
Lamb. 

(Omitting  a  minor  point.) 

All  concurring,  the  judgment  is  reversed  and  the  case  remanded. 

Reversed  and  remanded. 


(48  New  Jersey  Law,  32,  57  Am.  Rep.  534.) 

KNIGHT  vs.  CLARK. 
f Supreme  Court  of  New  Jersey,  February,  1886.J 

Action  on  the  following  contract: 
"$407.17,  Five  Points,  Gloucester  Co.,  N.  J., 

October  28th,  1884. 

"  For  value  received  we,  Allen  S.  Clark,  William  M.  Colson  and 
Joseph  H.  Knight,  members  of  the  township  committee  of  the 
township  of  Harrison,  county  of  Gloucester,  N.  J.,  and  our  suc- 
cessors in  office,  promise  to  pay  to  Edward  B.  Knight  or  order,  in 
six  months  from  the  date  hereof,  with  lawful  interest  from  date,, 
without  defalcation. 

And  in  case  of  default  of  payment  as  aforesaid,  we  nereby 
empower  any  attorney  at  law  to  be  appointed  by  said  Edward  B. 
Knight  or  his  assigns,  to  appear  in  any  court  which  said  Edward 
B.  Knight  or  his  assigns  may  select,  and  commence  or  prosecute  a 


Chap.  II]  Knight  vs.  Claek.  435 

suit  against  us  or  our  successors  in  office  on  said  note,  to  confess 
judgment  for  all  and  every  part  of  the  interest  or  principal  on  said 
note  in  the  payments  of  which  we  or  our  successors  in  office  may 
be  delinquent.  Witness  our  hands  and  seals,  this  28th  day  of 
October,  A.  D.  1884. 

"Allen  S.  Claek,         [L.  S.] 

"  William  M.  Colson,  [L.  S.] 

"Witness:  "Joseph  H.  Knight,    [L.  S.] 

"Wm.  F.  Iredell." 
David  A.  Pancoast,  for  plaintiff. 
Robert  S.  Clymer,  for  defendants. 

Beasley,  C.  J.  The  court  had  been  asked  by  the  counsel  of 
the  respective  parties  to  decide  the  question  involved  irrespectively 
of  the  pleadings. 

The  case  will  be  decided  from  the  facts  stated  in  the  record,  and 
the  admitted  fact  that  the  debt  secured  by  the  sealed  instrument 
sued  on  was  the  debt  of  the  township  of  Harrison.  The  only 
inquiry  therefore  is  whether  the  defendants,  by  the  form  of  the 
deed  executed  by  them,  have  made  themselves  personally  respon- 
sible for  this  public  debt. 

The  counsel  of  the  plaintiff,  in  support  of  the  right  of  action, 
has  referred  to  the  case  of  Dayton  vs.  War72e,  41  N.  J.  L.  659. 
But  that  case  is  not  in  any  degree  applicable,  for  it  was  a  case  of  a 
private  agency,  and  the  defendants,  in  the  present  instance, 
acted  in  a  public  capacity.  The  principle  of  decision  in  the 
reported  case  was  that  when  a  private  agent  does  not  attempt,  in 
a  sealed  instrument,  to  bind  his  principal,  but  in  terms  imposes 
the  obligation  on  himself  he  incurs  by  such  an  act  a  personal 
responsiblity.  But  it  is  well  settled  that  a  public  agent  does  not 
stand  on  the  same  footing.  It  is  much  against  public  policy  to  cast 
the  obligations  that  justly  belong  to  the  body  politic  upon  this  class 
of  officials. 

Upon  both  reason  and  authority  we  think  the  law  is  against  the 
plaintiff's  claim. 

The  case  of  Hodgson  vs.  Dexter,  1  Cranch.,  (U.  S.)  346  is 
directly  in  point.  The  facts  were  in  brief  the  following,  viz.: 
The  action  was  in  form  of  covenant  against  Dexter,  who  had  lately 
been  secretary  of  war,  and  was  founded  on  covenants  contained  in 
a  lease,  to  keep  in  good  repair  and  deliver  up  in  good  order  a  cer- 
tain building  hired  for  the  use  of  the  government.      The  building 


436  •  Cases  on  Agency.  [Book  III 

had  been  destroyed  by  fire,  and  the  sole  qnestion  was  whether 
Dexter  was  personally  liable.  The  lease  was  a  deed  inter  partes, 
which  Dexter  had  sealed  as  an  individual.  In  the  commencement 
of  the  instrument,  he  had  described  himself  "secretary  of  war/' 
and  to  the  performance  of  the  covenants  he  had  bound  himself 
(but  not  as  secretary)  and  "  his  successors.'' 

Under  these  circumstances  it  was  held  that  Dexter  was  not 
bound  personally,  Chief  Justice  Marshall  saying:  "  A  contrary 
doctrine  would  be  productive  of  the  most  injurious  consequences 
to  the  public,  as  well  as  to  individuals." 

This  decision  has,  we  believe,  been  universally  approved  of,  and 
it  is  evident  that  unless  overruled  by  this  court,  it  must  conclude 
this  controversy.  With  everything  that  was  said  in  this  case,  as 
well  as  in  the  conclusion  reached  by  the  court,  we  entirely  concur. 

It  will  be  observed  that  in  the  sealed  hill  forming  the  basis  of 
the  present  suit,  the  defendants  describe  themselves  as  "  members 
of  the  township  committee  of  the  township  of  Harrison,"  and  bind 
themselves  and  their  successors  in  oflBce,  and  authorize  judgment 
to  be  entered  against  themselves  or  "  their  successors  in  office." 
These  references  to  the  official  nature  of  the  business  embraced  in 
the  instrument,  and  the  position  of  the  defendants  with  reference 
to  it,  are  quite  as  significant  as  those  contained  in  the  lease,  the 
substance  of  which  is  above  recited. 

The  defendants  must  have  judgment. 

Judgment  affirmed. 

Note.— See  Brown  vs.  Bradlee,  post,  p.  — w 


(64  New  York  357,  21  Am.  Rep.  617.) 

BRIGGS  vs.  PARTRIDGE. 

("New  York  Court  of  Appeals,  March,  1876. J 

Appeal  by  plaintiff  from  judgment  of  the  General  Term  affirm- 
ing a  judgment  below  for  defendant.  The  action  was  brought  to 
recover  money  claimed  to  be  due  upon  a  contract  for  the  purchase 
of  lands.  According  to  the  complaint  and  the  evidence  offered,  it 
appeared  that  defendant  had  by  parol,  constituted  one  Hurlburd 
his  agent,  for  the  purpose  of  purchasing  the  lands  in  question 


Chap.  II  ]  Beiqqs  vs.  Paeteidgb.  437 

belonging  to  the  plaintiff;  that  therenpon  Hurlburd,  without  dis- 
closing the  agency,  entered  into  a  contract  nnder  seal  with  plaint- 
iff, whereby  he  agreed  to  purchase  such  lands  at  a  specified  price; 
the  contract  was  executed  by  Hurlburd  in  his  own  name,  and  the 
plaintiff  did  not  at  the  time  know  that  the  defendant  was  the 
real  principal  in  the  matter;  a  small  part  only  of  the  purchase 
money  was  paid.  Plaintiff  in  his  complaint  avowed  himself  ready 
to  execute  a  good  and  sufficient  deed.  Such  other  facts  as  are 
material  appear  in  the  opinion. 

Edward  D.  McCarthy,  for  appellant. 
Wm.  F.  Shepard,  for  respondent. 

Andeews,  J.  The  defendant  was  not  a  party  to  the  agreement 
for  the  sale  and  purchase  of  the  land.  He  did  not  sign  it  himself, 
nor  did  it  purport  to  have  been  executed  for  him  by  Hurlburd. 
His  name  does  not  appear  in  it,  and  there  is  nothing  upon  the  face 
of  the  agreement  to  indicate  that  he  was  in  any  way  connected 
with  or  interested  in  the  purchase.  The  covenants  in  the  agree- 
ment are  solely  between  the  plaintiff  and  Hurlburd.  The  former 
covenants  to  sell  and  convey  the  lands  to  Hurlburd,  and  Hurlburd 
covenants  to  purchase  and  pay  the  purchase-money  as  stipulated. 
The  defendant  took  no  part  in  the  negotiation  of  the  agreement, 
and  the  plaintiff,  when  he  made  and  executed  it,  had  no  knowledge 
that  Hurlburd  was  acting  as  the  agent  of  the  defendant.  The 
agreement  was  under  seal,  each  party  affixing  his  own  seal  to  the 
instrument.  Hurlburd,  the  apparent  purchaser,  was  in  fact  acting 
in  the  transaction  as  the  agent  of  the  defendant,  his  undisclosed 
principal,  under  an  oral  authority  to  enter  into  the  contract  in  his 
behalf;  and  the  defendant  furnished  the  money  to  make  the  down 
payment  to  the  broker  who  negotiated  the  sale. 

This  action  is  brought  by  plaintiff  upon  the  agreement  to  recover 
the  unpaid  purchase-money,  and  it  is  sought  to  enforce  it  against 
the  defendant  as  the  real  purchaser  and  party,  upon  the  ground 
that  Hurlburd,  the  nominal  purchaser,  was  acting  for  him  and  by 
his  authority  in  the  transaction.  The  real  question  is,  can  the 
vendor,  in  a  sealed  executory  agreement,  inter  partes,  for  the  sale 
of  land,  enforce  it  as  the  simple  contract  of  a  person  not  mentioned 
in  or  a  party  to  the  instrument,  on  proof  that  the  vendee  named 
therein,  and  who  signed  and  sealed  it  as  his  contract,  had  oral 
authority  from  such  third  person  to  enter  into  the  contract  of  pur- 
chase, and  acted  as  his  agent  in  the  transaction,  and  can  the  vendor 


438  Oases  on  Agency.  [Book  III 

on  this  proof,  there  having  heen  no  default  on  his  part,  and  he 
being  ready  and  willing  to  convey,  recover  of  such  third  person  the 
unpaid  purchase-money?  This  question  here  arises  in  a  case  where 
the  vendor,  so  far  as  it  appears,  has  remained  in  possession  of  the 
land,  and  where  no  act  of  ratification  of  the  contract  by  the  undis- 
closed i^rincipal  has  been  shown. 

It  is  not  disputed,  and  indeed  it  cannot  be,  that  Hurlburd  is 
bound  to  the  plaintiff  as  covenanter,  upon  the  covenants  in  the 
agreement.     He  covenants  for  himself  and  not  for  another,  to  pay 
the  purchase  money,  and  by  his  own  seal  fixes  the  character  of  the 
obligation  as  a  specialty.     He  is  liable  to  perform  the  contract 
irrespective  of  the  fact  whether  it  can  be  enforced  against   his 
nominal  principal.     On  the  other  hand,  it  is  equally  clear  that 
Hurlburd's  covenant  cannot  be  treated  as  or  made  the  covenant  of 
the  defendant.     Those  persons  only  can  be  sued  on  an  indenture 
who  are  named  as  parties  to  it,  and  an  action  will  not  lie  against 
one  person  on  a  covenant  which  purports  to  have  been  made  by 
another.     Beckham  vs.   Drake,  9  M.  &  W.  79;  Spencer  vs.  Field, 
10  Wend.  (N.  Y.)  88;  Townsend  vs.  Hubbard,  4  Hill  (N.  Y.),  351. 
In  the  case  last  cited,  it  was  held  that  where  an  agent  duly 
authorized  to  enter  into  a  sealed  contract  for  the  sale  of  land  of  his 
principals,  had  entered  into  a  contract  under  his  own  name  and  seal, 
intending  to  execute  the  authority  conferred  upon  him,  the  principals 
could  not  treat  the  covenants  made  by  the  agents  as  theirs,  although 
it  clearly  appeared  in  the  body  of  the  contract  that  the  stipulations 
were  intended  to  be  between  the  principals  and  the  purchasers,  and 
not  between  the  vendees  and  the  agent.    The  plaintiffs  in  that  case 
were  the  owners  of  the  land  embraced  in  the  contract,  and  brought 
their  action  in  covenant  to  enforce  the  covenant  of  the  vendees  to 
pay  the  purchase-money,  and  the  court  decided  that  there  was  no 
reciprocal  covenant  on  the  part  of  the  vendors  to  sell,  and  that  for 
want  of  mutuality  in  the  agreement  the  action  could  not  be  main- 
tained. 

It  is  clear,  that  unless  the  plaintiff  can  pass  by  the  persons  with 
whom  he  contracted,  and  treat  the  contract  as  the  simple  contract 
of  the  defendant,  for  whom  it  now  appears  that  Hurlburd  was  act- 
ing, this  action  must  fail.  The  plaintiff  invokes  in  his  behalf  the  doc- 
trine that  mu8t  now  be  deemed  to  be  the  settled  law  of  this  court,  and 
which  is  supported  by  high  authority  elsewhere,  that  a  principal  may 
be  charged  upon  a  written  parol  executory  contract  entered  into  by 
an  agent  in  his  own  name,  within  his  authority,  although  the  name 


Ohap.  II  ]  Beiggs  vs.  Paeteidgb.  439 

of  the  principal  does  not  appear  in  the  instrument,  and  was  not 
disclosed,  and  the  party  dealing  with  the  agent  supposed 
that  he  was  acting  for  himself,  and  this  doctrine  obtains  as  well 
in  respect  to  contracts  which  are  reqnired  to  be  in  writing,  as  to 
those  where  a  writing  is  not  essential  to  their  validity.     Uiggins 

vs.  Senior,  8  M.  &  W.  834  {post,  p. );  Truman  vs.  Lodcr,  11  Ad. 

&  El.  594;  Dykers  vs.  Totonsend,  24  N.  Y.  61;  Coleman  vs.  Bank, 
53  N.  Y.  393;  Ford  vs.  Williams,  21  How.  (U.  S.)  289;  Hunting- 
ton vs.  Knox,  7  Gush.  (Mass.)  371;  The  Eastern  R.  R.  Co.  vs. 
Benedict,  5  Gray,  (Mass.)  566,  66  Am.  Dec.  384;  Hubhert  vs.  Bor- 
den, 6  Whart.  (Pa.)  91;  Broioning  vs.  Insurance  Co.,  L.  K.  5  P. 
C.  263;  Calder  vs.  DoMl,  L.  R.  6  C.  P.  486.  Story  on  Agency, 
148,  160. 

It  is,  donbtless,  somewhat  difficult  to  reconcile  the  doctrine  here 
stated  with  the  rule  that  parol  evidence  is  inadmissible  to  change, 
enlarge  or  vary  a  written  contract,  and  the  argument  upon  which 
it  is  supported  savors  of  subtlety  and  refinement.  In  some  of  the 
earlier  cases  the  doctrine  that  a  written  contract  of  the  agent  could 
be  enforced  against  the  principal  was  stated,  with  the  qualifi- 
cation that  it  applied  when  it  could  be  collected  from  the  whole 
instrument,  that  the  intention  was  to  bind  the  principal.  But  it 
will  appear,  from  an  examination  of  the  cases  cited  that  this  quali- 
fication is  no  longer  regarded  as  an  essential  part  of  the  doctrine. 
Whatever  ground  there  may  have  been  originally  to  question  the 
legal  soundness  of  the  doctrine  referred  to,  it  is  now  too  firmly 
established  to  be  overthrown,  and  I  am  of  the  opinion  that  the 
practical  effect  of  the  rule  as  now  declared  is  to  promote  justice 
and  fair  dealing. 

There  is  a  well  recognized  exception  to  the  rule  in  the  case  of 
notes  and  bills  of  exchange,  resting  upon  the  law  merchant. 
Persons  dealing  with  negotiable  instruments  are  presumed  to  take 
them  on  the  credit  of  the  parties  whose  names  appear  upon  them; 
and  a  person  not  a  party  cannot  be  charged  upon  proof  that  the 
ostensible  party  signed  or  endorsed  as  his  agent.  Barker  vs. 
Mechanics'  Ins.  Co.,  3  Wend.  (N.  Y.)  94,  20  Am.  Dec.  664;  Pentz 
vs.  Stanton,  10  Id.  271,  35  Am.  Dec.  558;  DeWitt  vs.  Walton,  9 
N.  Y.  570;  Stackpole  vs.  Arnold,  11  Mass.  27,  6  Am.  Dec. 
150;  Eastern  R.  R.  vs.  Benedict,  supra;  Beckham  v.  Drake,  9 
M.  &  W.  79.  That  Hurlburd  had  oral  authority  from  the 
defendant  to  enter  into  a  contract  for  the  purchase  of  the  land, 
and  that  he  was  acting  for  the  defendant  in  making  it  is  admitted; 


440  Oases  ok  Aqbnot.  [Book  III 

and  if  the  contract  had  been  a  simple  contract  and  not  a  specialty 
the  defendant  would,  I  think,  have  been  bound  by  it  within  the 
authorities  cited. 

No  question  would  arise  under  the  statute  of  frauds,  for  the 
statute  prescribing  what  shall  be  necessary  to  make  a  valid  con- 
tract for  the  sale  of  land  requires  only  that  the  contract,  or  some 
note  or  memorandum  thereof  expressing  the  consideration,  should 
be  in  writing  and  subscribed  by  the  party  by  whom  the  sale  is  to 
be  made,  or  his  agent  lawfully  authorized.  2  E.  S.  135,  §§  8,  9.  In 
this  case  the  contract  was  signed  by  the  vendors;  and  even  if  it 
had  been  executed  on  their  part  by  an  agent  pursuant  to  an  oral 
authority,  it  would  have  been  a  valid  execution  within  the  statute. 
Lawrence  vs.  Taylor,  5  Hill,  (N.  Y.)  113;  Worrall  vs.  Alunn,  5  N. 
Y.  229,  55  Am.  Dec.  330.  But  the  vendee's  contract  need  not  be 
in  writing.     McCrea  vs.  Purmort,  16  Wend.  (N.  Y.)  469,  30  Am. 

Dec.  103. 

We  return  then  to  the  question  originally  stated.  Can  a  con- 
tract under  seal,  made  by  an  agent  in  his  own  name  for  the  pur- 
chase of  the  land,  be  enforced  as  the  simple  contract  of  the  real 
principal  when  he  shall  be  discovered.  No  authority  for  this 
broad  proposition  has  been  cited.  There  are  cases  which  hold 
that  when  a  sealed  contract  has  been  executed  in  such  form,  that 
it  is  in  law,  the  contract  of  the  agent  and  not  of  the  principal,  but 
the  principal's  interest  in  the  contract  appears  upon  its  face  and 
he  has  received  the  benefit  of  performance  by  the  other  party  and 
has  ratified  and  confirmed  it  by  acts  in  joais,  and  the  contract  is 
one  which  would  have  been  valid  without  a  seal,  the  principal  may 
be  made  liable  in  assumpsit  upon  the  promise  contained  in  the 
instrument,  which  may  be  resorted  to  to  ascertain  the  terms  of  the 
agreement.  Randall  vs.  Van  Vechten,  19  Johns.  (N.  Y.)  60,  10 
Am.  Dec.  193;  DuBois  vs.  Canal  Co.,  4  Wend.  285;  Lawrence  vs. 
Taylor,  supra.  See  also  Evans  vs.  Wells,  22  Wend.  324;  Worrall 
vs.  Munn,  supra;  Story  on  Agency,  §  277;  1  Am.  Lead  Cas.  735, 

note. 

The  plaintiff's  agreement  in  this  case  was  with  Hulburd  and  not 
with  the  defendant.  The  plaintiff  has  recourse  against  Hulburd 
on  his  covenant,  which  was  the  only  remedy  which  he  contemplated 
when  the  agreement  was  made.  No  ratification  of  the  contract  by 
the  defendant  is  shown.  To  change  it  from  a  specialty  to  a  simple 
contract,  in  order  to  charge  the  defendant  is  to  make  a  different 
contract  from  the  one  the  parties  intended.     A  seal  has  lost  most 


Chap.  II  ]  Beiggs  vs.  Paeteidqb.  441 

of  its  former  significance,  bnt  the  distinction  between  specialties 
and  simple  contracts  is  not  obliterated.  A  seal  is  still  evidence, 
though  not  conclusive,  of  a  consideration.  The  rule  of  limitation 
in  respect  to  the  two  classes  of  obligations  is  not  the  same.  We 
find  no  authority  for  the  proposition  that  a  contract  under  seal 
may  be  turned  into  simple  contract  of  a  person  not  in  any  way 
appearing  on  its  face  to  be  a  party  to  or  interested  in  it,  on  proof 
deliors  the  instrument  that  the  nominal  party  was  acting  as  the 
agent  of  another,  and  especially  in  the  absence  of  any  proof  that 
the  alleged  principal  has  received  any  benefit  from  it,  or  has  in 
any  way  ratified  it,  and  we  do  not  feel  at  liberty  to  extend  the 
doctrine  applied  to  simple  contracts  executed  by  an  agent  for  an 
unnamed  principal  so  as  to  embrace  this  case.  The  general  rule, 
is  declared  by  Shaw,  0.  J.,  in  Huntuigton  vs.  Knox,  7  Gush. 
(Mass.)  374:  "Where  a  contract  is  made  by  deed,  under  seal, 
on  technical  grounds,  no  one  but  a  party  to  the  deed  is  liable  to 
be  sued  upon  it,  and,  therefore,  if  made  by  an  attorney  or  agent, 
it  must  be  made  in  the  name  of  the  principal  in  order  that  he 
may  be  a  party,  because  otherwise  he  is  not  bound  by  it." 

The  judgment  of  the  general  term  should  be  affirmed. 

All  concur.  Judgment  affirmed. 

Note. — See  also  Mahoney  vs.  McLean,  26  Minn.  415;   Lancaster  vs. 
Knickerbocker  Ice  Co.,  153  Fenn.  427. 


442  Cases  on  Agency.  [Book  III 


CHAPTER    III. 

OF  THE  EXECUTIOIJ  OF  SIMPLE  CONTRACTS. 


I. 

OP  THE   EXECUTION  OF  NEGOTIABLE  PAPEB. 


(76  California,  203,  9  Am.  St.  Rep.  193.) 

HOBSON  vs.  HASSETT. 

(Supreme  Court  of  California,  May,  1888.  J 

Rutledge  and  McConnell,  for  the  appellant. 

Vaughn  and  Cradlehaugh  and  G.  A.  Johnson,  for  the  respondent. 

Belcher,  C.  0.  This  action  was  brought  to  recover  the  amount 
due  on  a  promissory  note  which  reads  as  follows: 

"  September  7,  1881. 
*' 81,135.  One  day  after  date,  without  grace,  we  promise  to  pay 
A.  D.  Hobson  or  order  the  sum  of  eleven  hundred  and  thirty-five 
dollars,  payable  only  in  gold  coin  of  the  government  of  the  United 
States,  for  value  received,  with  interest  thereon  in  like  gold  coin, 
at  the  rate  of  ten  per  cent,  per  year  from  date  until  paid. 

"A.  Hassett,  President." 

The  court  below  found  that  prior  to  the  year  1878,  the  Granger's 
Business  Association  of  Healdsburg  was  duly  organized  as  a  corpo- 
ration, and  has  existed  as  such  ever  since;  that  on  the  eighth  day 
of  January,  1878,  the  said  corporation  became  indebted  to  the 
plaintiff  in  the  sum  of  two  thousand  dollars,  and  on  that 
day  made  and  delivered  its  promissory  note  to  plaintiff 
for  that  amount;  that  on  the  seventh  day  of  September,  1881, 
plaintiff  presented  this  note  to  one  Bagge,  who  was  the  book- 
keeper and  accountant  of  the  corporation,for  payment,and  requested 
that  the  corporation  pay  him  nine  hundred  dollars  in  cash,  and 
give  him  a  new  note  for  the  balance;  that  defendant  Hassett  was 
president  of  the  corporation  at  that  time;  that  Bagge  paid  the  nine 
hundred  dollars,  and  drew  a  new  note  for  the  balance  and  requested 


Chap.  Ill]  HoBSON  vs.  Hassett.  443 

defendant,  as  president  of  the  corporation  to  sign  it,  which  defend- 
ant intended  to  do,  but  signed  only  his  own  name,  adding  thereto 
the  word  "  president; "  that  the  note  bo  executed  is  the  note  set 
out  in  the  complaint;  that  defendant  and  Bagge  only  intended  to 
make  and  deliver  the  note  to  the  corporation,  and  did  not  then  or 
at  any  other  time  say  or  do  anything  to  lead  plaintiff  to  believe 
that  defendant  intended  to  make  or  deliver  his  own  note,  and  not 
»he  note  of  the  corporation;  that  plaintiff  could  not  read  writing, 
and  did  not  at  the  time  know  in  what  manner  the  note  was  executed, 
but  at  the  end  of  every  month,  for  eighteen  months  thereafter,  he 
presented  it,  and  received  from  the  corporation  the  interest  due 
thereon,  and  never  claimed  or  demanded  from  the  defendant  the 
payment  thereof  prior  to  the  bringing  of  this  action. 

Upon  these  facts  the  court  found,  as  a  conclusion  of  law,  that 
the  note  was  the  note  of  defendant,  and  not  of  the  corporation, 
and  thereupon  judgment  was  entered  in  favor  of  the  plaintiff. 
The  defendant  appealed,  and  the  case  comes  here  on  the  judgment 
roll. 

The  principal  contention  of  the  appellant  is,  that  the  note  was 
the  note  of  the  corporation,  and  not  of  the  defendant,  and  that 
the  court  erred  in  its  conclusions  of  the  law  to  the  contrary. 

In  view  of  the  large  number  of  adjudicated  cases,  it  is  some- 
times difficult  to  determine  whether  a  note  or  a  bill  of  exchange, 
drawn  by  an  agent,  but  for  the  use  and  benefit  of  his  principal, 
binds  the  agent  personally  or  not.  There  are,  however,  some 
general  rules  upon  the  subject,   which  seem  to  be  well  settled. 

Judge  Story  says:  **  "When,  upon  the  face  of  the  instrument, 
the  agent  signs  his  own  name  only,  without  referring  to  any  prin- 
cipal, then  he  will  be  held  personally  bound,  although  he  is  known 
to  be  or  avowedly  acts  as  agent."  Story  on  Promissory  Notes,  eec. 
68.  But,  '*  if  it  can,  upon  the  whole  instrument,  be  collected  that 
the  true  object  and  intent  of  it  are  to  bind  the  principal,  and  not 
to  bind  the  agent,  courts  of  justice  will  adopt  that  construction  of 
it,  however  informally  it  may  be  expressed."  Id.  sec.  69. 

Professor  Parsons  says:  "If  an  agent  make  a  note  in  his  own 
name,  and  add  to  his  signature  the  word  'agent,'  but  there  is 
nothing  on  the  note  to  indicate  who  is  principal,  the  agent  will  be 
personally  liable,  just  as  if  the  word  *  agent'  were  not  added."  1 
Parsons  on  Notes  and  Bills,  p.  95.  And  "one  who  puts  his  name 
on  negotiable  paper  will  be  liable  personally,  as  we  have  seen, 
although  he  acts  as  agent,  unless  he  says  so,  and  says  also  who  hia 


144  Cases  on  Agency.  [  Book  III 

principal  is;  ttat  is,  unless  lie  uses  some  expression  equivalent,  to 
use  Lord  Ellenborough's  language,  to  '  I  am  the  mere  scribe/  For 
if  the  contruction  may  fairly  be  that  while  he  acts  officially,  or  at 
the  request  of  others,  yet  what  he  does  is  still  his  own  act,  it  will 
be  so  interpreted/'  Id.  p.  102;  and  see,  also,  Sayre  vs.  Nichols,  5 
Cal.  487;  StacJcpole  vs.  Arnold,  11  Mass.  27,  6  Am.  Dec.  150; 
Williams  vs.  Rolhins,  16  Gray,  77,  77  Am.  Dec.  396;  Tucker  Mfg. 
Co.  vs.  Fairbanks,  98  Mass.  101;  Sturdevant  vs.  Hull,  59  Me.  172, 
8  Am.  Kep.  409;  Pentz  vs.  Stanton,  10  Wend.  271,  25  Am.  Dec. 
558;  Powers  vs.  Briggs,  79  111.  493,  22  Am.  Rep.  175. 

The  cases  cited  by  appellant  are  not  in  conflict  with  the  rules 
above  stated.  In  Farmers'  and  Mechanics'  Bank  vs.  Colby,  64 
Cal.  352,  the  note  was  signed  by  *•  G.  A.  Colby,  Prest.  Pac.  Peat 
Coal  Co.,  D.  K.  Tripp,  Sec.  pro  turn."  It  was  indorsed  by  Colby 
and  four  others.  Tite  action  was  against  Colby  and  Tripp  as 
makers,  and  the  other  defendants  as  indorsers.  The  court  said: 
"  Bead  as  a  whole,  we  think  it  apparent  from  its  face  that  it  is  the 
note  of  the  company  indorsed  by  the  individuals.** 

In  Bean  vs.  Pioneer  Mining  Co.,  66  Cal.  451,  56  Am.  Rep.  106, 
the  note  was  signed  ''Pioneer  Mining  Company,  John  E.  Mason, 
Supt.**  The  plaintiff  sought  to  hold  Mason  personally  responsible 
on  the  note,  but  the  court  considered  him  not  bound.  The  court 
said:  **The  signature  is  not  John  E.  Mason,  superintendent  of 
the  Pioneer  Mining  Company,"  the  last  portion  of  which,  in  the 
absence  of  any  words  in  the  body  of  the  note  indicating  an  inten- 
tion that  it  should  be  an  obligation  of  the  company,  might,  it  is 
claimed,  be  held  to  be  merely  descriptio  persoi.ce.  But  here  the 
words  'Pioneer  Mining  Compan}^,*  precede  the  name  'John  E. 
Mason.*  ** 

In  Mechanics*  Bank  of  Alexandria  vs.  Bank  of  C'olumbia,  6 
Wheat.  (U.  S.)  326,  the  question  was  whether  a  certain  act  done 
by  the  cashier  of  a  bank  was  done  in  his  official  or  individual 
capacity.  The  action  was  based  upon  a  check,  and  the  court  said: 
"But  the  fact  that  this  appeared  on  its  face  to  be  a  private  check 
is  by  no  means  to  be  conceded.  On  the  contrary,  the  appearance  of 
the  corporate  name  of  the  institution  on  the  face  of  the  paper  at 
once  leads  to  the  belief  that  it  is  a  corporate  and  not  an  indi- 
vidual transaction;  to  which  must  be  added  the  circumstance  that 
the  cashier  is  the  drawer  and  the  teller  the  payee;  and  the  form  of 
ordinary  checks  deviated  from  by  the  substitution  of  '  to  order, 'for  *  to 


Chap.  Ill  ]  HoBSON  vs.  Hassett.  445 

bearer.'  The  evidence,  therefore,  on  the  face  of  the  bill,  predomi- 
nates in  favor  of  its  being  a  bank  transaction.** 

In  Carpenter  vs.  Farnsworfh,  lOG  Mass.  5G1,  8  Am.  Rep.  360, 
the  action  was  on  a  check  having  the  words  "iEtna  Mills"  printed 
in  the  margin  and  signed  *'  J.  D.  Farusworth,  Treasurer.*'  The 
court  said  "  that  this  check  manifests  upon  its  face  that  the  writ- 
ing is  the  act  of  the  principal,  though  done  by  the  hand  of  an 
agent;  or,  in  other  words,  that  it  is  the  check  of  the  jEtna  Mills, 
executed  by  Farnsworth  as  their  treasurer  and  in  their  behalf." 

The  other  cases  cited  do  not  need  special  notice. 

In  the  light  of  the  rules  of  law  above  announced,  the  question 
then  is,  did  the  defendant,  by  signing  the  note  as  he  did,  make 
himself  personally  responsible  for  its  payment?  It  seems  to  us 
that  there  can  be  but  one  answer  to  this  question,  and  that  is,  that 
he  did.  There  is  nothing  on  the  face  of  the  note  to  show  that 
there  was  any  principal  back  of  the  defendant.  He  signed  his  own 
name,  and  wholly  failed  to  indicate,  if  he  had  a  principal,  who  or 
what  the  principal  was.  The  word  "  president,**  which  he  added 
to  his  name,  must  therefore  be  regarded  as  a  mere  descriptio 
personcB. 

It  is  further  contended  that,  as  the  promissory  note  of  the 
defendant,  it  was  without  consideration.  We  do  not  think  this 
position  can  be  maintained.  The  note  imports  a  consideration, 
and  it  must  be  presumed  that  when  the  old  note  was  paid  it  was 
given  up,  and  a  new  one  taken  in  its  place.  The  old  note  was 
a  sufficient  consideration  for  the  new. 

We  think  the  court  drew  correct  conclusions  from  the  facts 
before  it,  and  therefore  advise  that  the  judgment  be  affirmed. 

Note.— See,  also,  Davis  vs.  England,  141  Mass.  687;  Exchange  Bank  vs. 
Lewis  County,  28  W.  Va.  273;  Robinson  vs.  Kanawha  Valley  Bank,  44 
Ohio  St.  441;  Tilden  vs.  Barnard,  43  Mich.  376,  38  Am.  Rep.  197;  Rendeil 
vs.  Earriman,  75  Me.  497;  Burlingame  vs.  Brewster,  79  IlL  515,  22  Am. 
Rep.  177;  Powers  vs.  Briggs,  79  111.  493,  22  Am.  Rep.  175. 


446  Cases  ox  Agek^cy.  [Book  III 

( 54  New  Jersey  Law  208,  16  L.  K.  A.  143.) 

EEEVE  vs.  FIEST   NATIONAL   BANK  OF  GLASSBOEO. 

(New  Jersey  Court  of  Errors  and  Appeals,  February,  1S9S.J 

Action  to  recover  upon  a  promissory  note.  The  opinion  states 
the  facts.     Plaintiff  had  judgment  below. 

J.  J.  Crandall,  for  plaintiff  in  error. 
Leivis  Starr,  for  defendant  in  error. 

Reed,  J.,  delivered  the  opinion  of  the  conrt.  This  cause  was 
tried  at  the  Gloucester  Circuit.  The  action  was  brought  upon 
certain  promissory  notes,  of  which  the  following  is  a  copy: 

«*|97  70-100.  Glassboro,  N.  J.,  Dec.  18,  1890. 

*'  Three  months  after  date  we  promise  to  pay  to  the  order  of 
Thos.  Reeve,  at  the  First  National  Bank  of  Glassboro,  ninety- 
seven  and  70-100  dollars,  without  defalcation,  value  received. 

**  Warrick  Glass  Works. 

"J.  Price  Warrick,  Pres. 

Two  additional  notes,  one  for  $90.80  and  another  for  $140.10, 
were  in  the  same  form.  Each  was  endorsed  by  the  payee  and  held 
for  value  by  the  First  National  Bank  of  Glassboro.  At  maturity  a 
demand  of  payment  was  made  at  the  bank  upon  the  Warrick  Glass- 
Works,  payment  refused,  and  notice  of  protest  duly  given  to 
Reeve,  the  payee  and  indorser.  The  defense  interposed  by  the 
defendant's  counsel  was  that  the  note  was  signed  by  the  Warrick 
Glass  Works  and  by  J.  Price  Warrick  as  joint  makers;  that  demand 
of  payment  should  have  been  made  upon  each  of  the  joint  makers; 
and  therefore  it  was  insisted  that  the  failure  to  make  a  demand 
upon  Warrick  relieved  the  indorser  from  liability.  The  only  facta 
proved  in  the  case  bearing  upon  the  question  mooted  were  that  the 
note  was  given  by  the  corporation  for  feed  furnished,  and  that  J. 
Price  Warrick  was  the  president  of  the  company.  At  the  conclu- 
Bion  of  the  plaintiff's  case  a  motion  to  nonsuit  was  made  and  over- 
ruled. This  action  of  the  trial  court  was  the  subject  of  the  only 
material  exception. 

We  are  of  the  opinion  that  the  refusal  to  non-suit  was  correct. 
The  note  was  that  of  the  Warrick  Glass  Works  alone.  The 
demand  of  payment  was  properly  made  upon  the  corporation  only. 


Chap.  Ill]  Reeve  vs.  Nat'l  Bank.  447 

The  cases  in  which  the  liability  of  parties  to  paper  similar  to  this 
is  determined  are  not  uniform  in  their  resnlts.  Indeed,  great  con- 
trariety of  views  can  be  found  in  the  decisions  upon  this  question. 
A  detailed  examination  of  those  cases  would  not  result  in  much 
profit.  The  result  of  the  best  considered  decisions  is  this:  Where 
nothing  appears  in  the  body  of  a  note  to  indicate  the  maker,  and 
the  note  is  signed  by  a  corporate  name  under  which  name  appears 
the  name  of  an  officer  of  the  company,  with  his  corporate  ofBcial 
title  affixed  thereto,  in  such  case  the  note  is  taken  conclusively  to 
be  that  of  the  corporation.  Where  however,  a  note  drawn  in  a 
similar  form,  except  as  to  the  signatures,  is  subscribed  by  the  name 
of  an  officer  of  a  corporation,  to  which  name  is  affixed  his  title  as 
an  officer  of  a  particular  corporation,  the  result  is  not  the  same. 
In  respect  to  notes  drawn  in  the  last  mentioned  form,  the  courts 
in  most  of  the  states  hold  that  there  is  an  ambiguity  arising  out  of 
this  manner  of  coupling  the  names  of  the  natural  person  and  of 
the  corporation.  It  is  therefore  open  to  the  parties  to  introduce 
extrinsic  testimony  to  disclose  facts  from  which  it  can  be  concluded 
which  of  the  parties  should  be  regarded  as  the  maker. 

In  this  state  the  rule  is  that  a  note  drawn  in  this  form  is  prima 
facie  the  note  of  the  person  signing  and  not  the  note  of  the  cor- 
poration; but  this  is  only  a  disputable  presumption,  and,  upon  the 
ground  of  an  existing  ambiguity  concerning  the  maker,  evidence  is 
admissible  to  show  that  it  was  intended  to  be  the  note  of  the  cor- 
poration, which  evidence  can,  of  course,  be  met  with  counter-evi- 
dence of  the  same  character.  This  rule  was  definitely  settled  in 
the  case  of  Eean  vs.  Davis,  21  N.  J.  L.  683,  47  Am.  Dec.  182.  In 
this  case  a  note  was  signed,  **  John  Kean,  Prest.  F.  &  S.  S.  R.  R. 
Co.'*  It  was  held  to  be  prima  facie  the  note  of  Kean,  but  it  was 
held  that  parol  evidence  might  be  introduced  to  show  whether  it 
really  was  the  personal  note  of  the  officer  or  was  the  note  of  the 
railroad  company.  If,  therefore,  the  present  note  had  been  signed 
"J.  Price  Warrick,  President  of  the  Warrick  Glass  Works,"  it,  in 
the  absence  of  parol  testimony  to  show  a  contrary  intention,  would 
be  regarded  as  the  note  of  Warrick.  As  the  notes  are  signed  with 
the  name  of  the  corporation,  followed  by  the  words,  "J.  Price 
Warrick,  Pres.,"  they  are  taken  to  be  corporation  paper. 

This  conclusion  seems  to  rest  upon  rational  ground.  The  name 
of  the  corporation  signed  first  stands  as  a  principal,  and  tAat  of 
the  officer  as  agent.  The  name  of  a  corporation,  so  placed,  raises 
the  implication  of  a  corporate  liability.     To  so  place  it  requires 


448  Cases  on  Ageitct.  [Book  III 

the  hand  of  an  agent.  The  name  of  an  officer  of  snch  corpora- 
tion, to  which  name  the  official  title  is  appcuded,  put  beneath  the 
corporate  name,  implies  the  relation  of  principal  and  agent.  It 
means  that,  inasmuch  as  every  corporate  act  must  be  done  by  a 
natural  person,  this  person  is  the  agent  by  whose  hand  the  corpor- 
ation did  the  particular  act.  This  form  of  signature  is  just  as 
significant  in  respect  to  the  notes  in  question  as  if  the  name  the 
'*  "Warrick  Glass  Works  '*  had  been  written,  **  Per  Warrick, 
Agent."  The  following  are  cases  in  which  notes  in  similar  form 
to  those  now  in  suit  have  been  held  to  be  solely  the  notes  of  the 
corporation  whose  name  first  appeared,  followed  by  the  name  of 
an  officer:  Bean  vs.  Pioneer'  Min.  Co.,  66  Cal.  451,  56  Am.  Eep. 
106;  Atkins  vs.  Brown,  59  Me.  90;  Castle  vs.  Belfast  Foundry 
Co.,  72  Me.  167;  Millar  vs.  Roach,  150  Mass.  140,  6  L.  R.  A.  71; 
Draper  vs.  Massachusetts  Steam  Heat  Co.,  5  Allen,  338;  Liehscher 
vs.  Kraus,  74  Wis.  387,  17  Am.  St.  Eep.  171;  5  L.  R.  A.  496, 
{post,  p.  — ). 

I  do  not  perceive  any  significance  in  the  use  of  the  words  "  we 
promise  to  pay,*'  instead  of  ''  the  company  promises  to  po.y."  The 
contention  was  that  the  nse  of  these  words  raised  an  implication 
that  it  was  the  joint  note  of  the  corporation  and  Warrick.  But, 
as  has  been  remarked  in  more  than  one  of  the  cases  cited,  in  which 
the  notes  contained  a  promise  in  like  form,  the  word  "  we  "  is  often 
used  by  a  corporation  aggregate.  Draper  vs.  Massachusetts  Steam 
Heat  Company,  supra;  Beati  vs.  Pioneer  Min.  Co.,  supra;  Ran- 
dolph Co.  Paper,  143. 

Our  conclusion  is  that  the  demand  was  made  upon  the  only 
maker,  and  therefore  the  refusal  of  the  trial  judge  to  nonsuit  was 
right. 

Judgment  affirmed. 


(74  Wisconsin,  387,  17  Am.  St.  Rep.  171,  5  L.  R.  A.  496.) 

LIEBSOHER  vs.  KRAUS. 

(Supreme  Court  of  Wisconsin,  August,  1889. J 

Action  upon  a  note.     The  opinion  states  the  facts.     Defend- 
ant had  judgment  below. 

Frank  J.  Lenicheck  and  /.  C.  McKenney,  for  the  appellant. 


Ohap.  Ill]  LiEBSCHEB  vs.  Kraus.  449 

Winkler,  Flanders,  Smith,  Bottum  and  Vilas,  for  the 
respondent. 

Orton,  J.  This  action  was  brought  on  the  following  promis- 
sory note: 

"  $037.40.  Milwaukee,  January  1,  1887. 

"  Ninety  days  after  date,  we  promise  to  pay  to  Leo  Liebscher, 
or  order,  the  sum  of  six  hundred  and  thirty-seven  dollars  and  forty 
cents,  value  received. 

"  San  Pedro  Minii^tg  and  Milling  Company, 

"F.  Kraus,  President." 

The  plaintiff  demands  judgment  on  this  note  against  both  the 
corporation  and  Frederick  Kraus,  as  joint  nicakers.  The  defendant 
Kraus  answered  that  he  signed  the  note  for  the  said  San  Pedro 
Mining  and  Milling  Company,  as  its  president,  and  not  otherwise, 
and  that  his  signature  was  placed  upon  said  note  for  the  purpose 
of  showing  who  executed  the  same  on  behalf  of  said  company, 
and  as  a  part  of  the  corporation  signature  to  the  note,  and  for  no 
other  purpose.  The  plaintiff  offered  to  prore  on  the  trial  substan- 
tially that  Kraus  did  not  sign  the  name  of  the  company,  but 
signed  his  own  name  as  a  joint-maker,  intending  to  bind  himself, 
and  that  this  was  according  to  the  understanding  of  the  parties,  at 
the  time.  This  offer  was  rejected,  and  a  verdict  in  favor  of  Kraus 
was  directed  by  the  court.  This  evidence  is  admissible  only  on  the 
ground  that  there  is  an  ambiguity  in  the  signatures  to  the  note.  If, 
in  the  law,  this  signing  imports  that  both  the  company  and  Kraus 
are  jointly  bound,  or  that  only  the  company  is  bound,  there  is  no 
ambiguity  and  parol  evidence  to  alter  or  vary  this  effect  is  inadmis- 
sible. But  if,  in  the  law,  such  signing  imports  only  that  both 
are  bound,  or  that  the  company  only  is  bound,  according  to  the 
facts  and  circumstances  in  explanation  of  it  and  the  intention 
or  understanJing  of  the  parties,  then  there  is  an  ambiguity,  and 
the  evidence  was  proper. 

The  contention  of  the  learned  counsel  of  the  appellant  that  this 
signing  imports  that  both  are  bound,  is  inconsistent  with  the  offer 
of  such  evidence.  The  learned  counsel  of  the  appellant  has 
expressed,  in  his  brief,  the  true  principle,  as  follows:  "As  to  the 
question  of  parol  evidence,  the  rule  of  law  is,  that  such  evidence 
cannot  be  admitted  to  vary  the  terms  of  a  contract,  or  to  show  con- 
trary intention  than  that  disclosed  by  the  instrument,  unless  there 
29 


450  Oases  on  Agen'CT.  [Book  III 

is  an  ambiguity."  This  has  been  often  decided  to  be  the  law  by 
this  court.  Foster  vs.  Clifford,  44  Wis.  5G9,  28  Am.  Rep.  603; 
Cooper  vs.  CIcgliorn,  50  Wis.  113;  Huhbard  vs.  Marshall,  50  Wis. 
322;  Gilmann  vs.  Henri/,  53  Wis.  470. 

There  appears  to  be  an  inconsistency  in  cases  where  it  is  first 
held  that  such  a  note  ipso  facto  binds  the  person  who  signed  it 
with  his  official  name,  and  yet  that  parol  evidence  might  be  given 
to  make  it  certain.  Heffner  vs.  Brownell,  70  Iowa,  591.  This 
case  is  mentioned  as  the  only  one  in  which  it  has  been  decided  that 
Buch  signing  binds  the  person  as  well  as  the  corporation ;  but  there 
would  seem  to  be  somewhat  of  an  ambiguity  in  the  opinion. 

In  Bean  vs.  Pioneer  Mining  Company,  66  Gal.  451,  56  Am.  Rep. 
106,  it  seems  to  have  been  decided  that  a  similar  note  bound 
the  company  alone,  but  that  the  parol  evidence  was  proper 
to  explain  it.  No  case  is  cited,  and  I  can  find  none,  where 
it  has  been  decided  squarely  that  such  a  note  bound  both 
the  company  and  the  person  whose  name  appears  below  with 
the  name  of  his  office  or  agency,  or  bound  the  company  alone, 
except  the  case  of  Chase  vs.  Pattberg,  12  Daly,  171,  where  the 
note  was,  "We  promise  to  pay,"  etc.,  "(Signed)  English  S.  M.  Co., 
H.  Pattberg,  Manager;"  and  it  was  decided  that  the  company 
was  not  bound,  but  that  Pattberg  was.  The  authorities  are  gen- 
erally the  other  way.  In  Draper  vs.  3Iassachusetts  Steam  Heat- 
ing '0.,  5  Allen,  338,  the  note  was,  "  We  promise  to  pay,"  etc., 
**(Signed)  Massachusetts  Steam  Heating  Company;  L.  S.  Fuller, 
Treasurer."  In  Castle  vs.  Belfast  Foundry  Co.,  72  Me.  167,  it 
was,  "  We  promise  to  pay,"  etc.,  "  at  office  Belfast  Foundry  Com- 
pany; (Signed)  Belfast  Foundry  Comj)any,  AV.  W.  Castle, 
President."  In  Falk  vs.  Mocbs,  127  U.  S.  597,  it  was,  "We 
promise  to  pay,"  etc.,  "to  order  of  Geo.  Moebs,  Sec.  &  Treas- 
urer, at,"  etc.;  "(Signed)  Peninsular  Cigar  Co.,  Geo.  Moebs, 
Sec.  &  Treas.,"  and  indorsed,  "  Geo.  Moebs,  Sec.  &  Treas." 
These  notes  were  held  to  be  unambiguous,  and  not  explainable  by 
parol  evidence,  and  the  notes  of  the  companies  alone. 

Many  other  cases  of  similar  signing  are  found  in  the  above  cases 
and  in  the  text  books.  See  also  Mechem  on  Agency,  section  439;  1 
Randolph  on  Commercial  paper,  188;  1  Daniel  on  Negotiable  Instru- 
ments, sections  299-305;  (Jillt'lt  vs.  JSiewmarket  Savings  Hank,  7 
111.  A  pp.  499;  Scanlan  vs  Keith,  102  111.  634,  40  Am.  Rep.  624; 
Z  atham  vs.  Houston  Flour  Mills,  68  Tex.  127;   Story  on  Agency, 


Ciiap.  Ill]  LlEBSCHER   vs.    KliAUS.  451 

sec.  154;  Tarsons  on  Notes  and  Bills,  312.  The  question  comes 
very  near,  if  not  quite,  having  been  decided  by  this  court  in 
Houghton,  vs.  First  National  Bank,  26  Wis.  663,  7  Am.  Rep.  107, 
where  it  held  that  an  indorsement  on  a  note  not  belonging  to 
the  bank  by  "Geo.  Buckley,  Gas.,''  he  being  cashier  of  the  bank, 
bound  the  bank,  and  not  himself.  In  Balhton  Spa  Ba  k  vs. 
Marine  Bank,  16  Wis.  120,  it  is  held  that  a  note  signed  by  "J.  H. 
Sidmore,  Cash.,"  bound  the  bank  alone.  In  Eockivell  vs.  Elkhorn 
Bank,  13  Wis.  653,  where  the  bank  promises  to  pay  in  the  body 
of  the  note,  and  it  is  signed  only  by  "  D.  D.  Spencer,  Gashier,"  it 
was  held  that  the  bank  only  was  bound. 

The  principle  of  these  authorities  seems  to  be  "  that  if  the  agent 
sign  the  note  with  his  own  name  alone,  and  there  is  nothing  on  the 
face  of  the  note  to  show  that  he  was  acting  as  agent  he  will  be 
personally  liable;  but  if  his  agency  appears  with  his  signature,  then 
his  principal  only  is  bound,"  Here  the  corporation  could  not  sign 
its  own  name,  and  it  is  not  otherwise  shown  on  the  face  of  the  note 
than  that  Krans  signed  the  corporate  name,  and  by  adding  the 
word  "  president"  to  his  own  name,  he  shows  conclusively  that,  as 
president  of  the  corporation,  he  signed  the  note,  and  not  other- 
wise. Such  is  the  natural  and  reasonable  construction  of  these 
signatures,  and  so  it  would  be  generally  understood.  The  affix 
**  cashier,"  "  secretary,''  "  president,"  or  "  agent  "  to  the  name  of 
the  person  sufficiently  indicates  and  shows  that  such  person  signed 
the  bank  or  corporate  name,  and  in  that  character  and  capacity  alone. 
The  use  of  the  word  "  by  "  or  "  per  "  or  "  pro  "  would  not  add  to 
the  certainty  of  what  is  thus  expressed.  It  is  not  common  to  use 
these  words  in  commercial  business.  It  is  sufficiently  understood 
that  the  paper  is  signed  by  the  officer  or  agent  named,  and  for  the 
corporation.  But  it  is  useless  to  prolong  this  discussion.  It  is 
almost  too  plain  for  argument.  The  note  was  that  of  the  corporation 
alone,  signed  by  Kraus  as  its  president.  The  circuit  court  properly 
rejected  the  offer  of  parol  proof,  and  correctly  instructed  the  jury 
to  find  a  verdict  in  favor  of  Kraus. 

The  judgment  of  the  circuit  court  is  affirmed. 

Note.— In  Keidan  vs.  Winegar,  »5  Mich.  430,  54  N.  W.  Rep.  901,  the 
rule,  as  to  the  admissibility  of  parol  evidence  stated  in  Mechem  on  Agency, 
§  443,  is  quoted  with  approval. 


458  Cases  on  Agekcy.  [Book  III 

II. 

OP  THE  EXECimOM"  OF  OTHEE  SIMPLE   CONTRACTS. 


(101  United  States,  [11  Otto]  392,  2  ]\Iter'8Fed.  Deo.  170.) 

WHITNEY  vs.  WYMAN. 
fSupreme  Court  of  the  United  States,  October,  1S79.J 

This  was  an  action  brought  by  Whitney  to  recover  the  price  of 
certain  machinery  alleged  to  have  been  sold  by  him  to  defendants, 
Wyman,  Ferry  and  Storrs.  The  defense  was  that  the  defendants, 
in  making  the  purchase,  acted  for  and  in  behalf  of  the  Grand  Haven 
Fruit  Basket  Company  and  not  personally.  Defendants  and  a 
number  of  other  persons  had  on  January  5,  1869,  organized  a  cor- 
poration bearing  that  name,  and  on  January  21st  the  corporation 
had  adopted  by-laws  and  elected  directors.  On  January  25,  defend- 
ants were  elected  by  the  directors,  a  ^'prudential  committee.'" 
The  articles  of  association  were  not  filed  with  the  Secretary  of  State 
until  February  19,  1869,  and  with  the  county  clerk  until  May  12, 
1869.  The  statute  provided  that  the  corporation  should  not  com- 
mence business  until  the  articles  were  so  filed. 

On  February  1,  1889,  defendants,  who  were  authorized  by  the 
directors  to  buy  the  machinery,  wrote  to  Whitney  saying,  **  Our 
company  being  so  far  organized,  by  direction  of  the  ofiicers,  we 
now  order  from  you,**  etc.,  giving  a  list  of  the  machinery,  and 
signed  *' Charles  Wyman,  Edward  P.  Ferry,  Carlton  L.  Storrs, 
Prudential  Committee,  Grand  Haven  Fruit  Basket  Co."  On  Feb- 
ruary 10,  plaintiff  addressed  a  letter  to  the  company  acknowledging 
receipt  of  the  order,  saying  he  had  already  anticipated  it  by  begin- 
ning work  on  the  machinery  and  would  push  it  with  all  his  force. 
April  14,  plaintiff  addressed  a  letter  to  defendants  enclosing  the 
bill  and  stating  that  the  machinery  had  been  shipped.  Plaintiff 
charged  the  machinery  to  defeudants  personally  upon  his  books, 
and  drew  a  draft  upon  them  which  they  refused  to  accept.  The 
company  received  the  machinery  and  used  it  in  its  business,  and 
its  treasurer  paid  the  freight.  The  company  failed  to  pay,  and 
plaintiff  in  this  action  sought  to  hold  defendants  personally  liable. 
The  court  below  instructed  the  jury  that  the  letter  of  February  1, 
1809,  bound  the  company  and  not  the  defendants  personally,  if 


Chap.  Ill]  Whitney  vs.  Wyman.  453 

there  was  then  a  corporation;  that  if  it  was  exercising  its  franchise 
as  snch  it  was  a  corporation  de  facto,  and  the  irregularities  in  its 
organization  were  immaterial.     Verdict  for  defendant, 

J.  W.  (Jliamplin,  for  plaintill  in  error. 
M.  J.  Smiley,  for  defendants. 

SwAYNE,  J.  (After  stating  the  facts.)  "Where  the  qnestion  of 
agency  in  making  a  contract  arises  there  is  a  broad  line  of  distinc- 
tion between  instruments  nnder  seal,  and  stipulations  in  writing 
not  under  seal,  or  by  parol.  In  the  former  case  the  contract  must 
be  in  the  name  of  the  principal,  must  be  under  seal,  and  must  pur- 
port to  be  his  deed  and  not  the  deed  of  the  agent  covenanting  for 
him.  Stanton  vs.  Camp,  4  Barb.  (N.  Y.)  274.  In  the  latter  cases 
the  question  is  always  one  of  intent,  and  the  court,  being  untram- 
meled  by  any  other  consideration,  is  bonnd  to  give  it  effect.  As 
the  meaning  of  the  law-maker  is  the  law,  so  the  meaning  of  the 
contracting  parties  is  the  agreement.  Words  are  merely  the 
symbols  they  employ  to  manifest  their  purpose  that  it  may  be 
carried  into  execution.  If  the  contract  be  unsealed  and  the  mean- 
ing clear,  it  matters  not  how  it  is  phrased,  nor  how  it  is  signed, 
whether  by  the  agent  for  the  principal,  or  with  the  name  of  the 
principal  by  the  agent,  or  otherwise.  The  intent  developed  is 
alone  material,  and  when  that  is  ascertained  it  is  conclusive. 
Where  the  principal  is  disclosed,  and  the  agent  is  known  to  be  act- 
ing as  such,  the  latter  cannot  be  made  personally  liable  unless  he 
agreed  to  be  so. 

Looking  at  the  letter  of  the  defendants  of  the  1st  of  February, 
18C9,  and  the  answer  of  the  plaintiff  of  the  10th  of  that  month, 
we  cannot  doubt  as  to  the  understanding  and  meaning  of  both 
parties  with  respect  to  the  point  in  question.  The  former  advised 
the  latter  of  the  progress  made  in  organizing  the  corporation;  that 
the  order  was  given  by  the  direction  of  its  officers,  and  the  letter  is 
signed  by  the  writers  as  the  ''Prudential  Committee  of  the  Grand 
Haven  Fruit  Basket  Co.,"  which  was  the  name  in  full  of  the  cor- 
poration. The  plaintiff  addressed  his  reply  to  the  "  Grand  Haven 
Fruit  Basket  Company,"  thus  using  the  name  of  the  corporation 
as  the  party  with  whom  he  knew  he  was  dealing,  and  omitting  the 
names  of  the  defendants,  and  their  designation  as  a  committee, 
according  to  the  style  they  gave  themselves  in  their  letter.  It 
seems  to  us  entirely  clear  that  both  parties  understood  and  meant 
that  the  contract  was  to  be,  and  in  fact  was,  with  the  corporation. 


4:54  Cases  on  Agency.  [Book  III 

and  not  with  the  defendants  individnally.  The  agreement  thna 
made  could  not  be  afterwards  changed  by  either  of  the  parties 
without  the  consent  of  the  other.  Uiley  vs.  Donaldson,  94  U.  S.  29. 
But  it  is  said  the  corporation  at  the  date  of  these  letters  was  for- 
bidden to  do  any  business,  not  having  then  filed  its  articles  of 
association,  as  required  by  the  statute.  To  this  objection  there  are 
several  answers.  The  corporation  subsequently  ratified  the  contract 
by  recognizing  and  treating  it  as  valid.  This  made  it  in  all  respects 
what  it  would  have  been  if  the  requisite  corporate  power  had  existed 
when  it  was  entered  into.  Angell  &  Ames.  Corp.  §  804,  and 
note.  The  corporation  having  assumed  by  entering  into  the  con- 
tract with  the  plaintiff  to  have  the  requisite  power,  both  parties 
are  estopped  to  deny  it.  Id.  §  635,  and  note.  The  restriction 
imposed  by  the  statute  is  a  simple  inhibition.  It  did  not  declare 
that  what  was  done  should  be  void,  nor  was  any  penalty  prescribed. 
No  one  but  the  State  could  object.  The  contract  is  valid  as  to  the 
plaintiff,  and  he  has  no  right  to  raise  the  question  of  its  invalidity. 
National  Bank  vs.  MattJieios,  98  U.  S.  621.  The  instruction  given 
by  the  court  to  the  jury  with  respect  to  acts  of  user  by  the  corpora- 
tion in  proof  of  its  existence  was  correct.  If  there  was  any  error, 
it  was  in  favor  of  the  plaintiff.  Angell  &  Ames,  Corp.  sec.  635. 
•      *      *  Judgment  afiHrmed. 


(156  Massachusetts,  28,  15  L.  E.  A.  509.) 

BROWN  vs.   BRADLEE. 

(Supreme  Judicial  Court  of  Massachusetts,  February,  1S9S.J 

Action  to  recover  the  amount  of  a  reward.     The  opinion  states 
the  facta.     The  plaintiff  recovered  below. 

J.  M.  B.  Cliurchill,  for  the  defendants. 

C.  Browne  <&  J.  J.  Feeley  {J.  H.  Taylor y  with  them),  for  the 
plaintiff. 

IIglmes,  J.     This  is  an  action  to  recover  a  reward  which  was 
offered  in  writing  in  the  following  terms: 

"  $2,500  reward  will  be  paid  to  any  person  furnishing  evidence 


Chap.  Ill]  Brown  vs.  Bradleb.  455 

that  will  lead  to  tlie  arrest  and  conviction  of  the  person  who  shot 
Mr.  Edward  Cunningham,  November  21,  1889. 

**J.  Walter  Bradleb. 
**T.  Edwin  Ruqgles. 
"J.  Albert  Simpson. 

*'  Selectmen  of  Milton. 

"Milton,  Nov.  22,  1889." 

The  main  questions  reserved  by  the  report  are  really  qnostions  as 
to  the  constrnction  of  this  instrument,  namely,  whether  the  defend- 
ants bound  themselves  personally  by  it,  and  what  evidence  would 
warrant  a  finding  that  the  conditions  of  the  offer  were  satisfied. 

On  the  first  question,  we  are  of  opinion  that  the  defendants  are 
personally  liable.  No  doubt  the  instrument  would  bind  the  town 
if  made  with  authority  and  intent  to  bind  it.  Crawshaw  vs.  Rox- 
lury,  7  Gray,  (Mass.)  374;  Janvrin  vs.  Exeter,  48  N.  H.  83,  2 
Am.  Eep.  185.  But  the  same  words  may  bind  two  parties:  the 
agent,  because  in  their  literal  sense  they  purport  to  bind  him;  the 
principal,  because  he  is  taken  to  have  adopted  the  name  of  the 
agent  as  his  own  for  the  purpose  of  the  contract.     Byington  vs. 

Simpson,  134  Mass.  169,  45  Am.  Eep.  314  (post,  p. );  Calder  vs. 

Dohelh  L.  R.  6  0.  P.  486.  The  purport  of  the  words  used  in  this 
case  is  that  the  promise  contained  in  the  body  of  the  paper  is  made 
by  the  signer. 

The  only  question  is  who  is  the  signer?  Do  the  defendants,  by 
adding  their  official  designation,  take  away  from  their  names  their 
ordinary  significance  as  proper  names,  and  make  of  their  collective 
signatures  a  composit  unit,  which  means  the  town  of  Milton  and 
nothing  else?  We  think  not.  But  for  the  words,  "Selectmen  of 
Milton,'^  the  promise  would  be  in  the  usual  and  proper  form  for  a 
personal  undertaking.  Wentworth  vs.  Day,  3  Mete.  (Mass.)  352, 
37  Am.  Dec.  145;  Besse  vs.  Dyer,  9  Allen  (Mass.)  151,  85  Am. 
Dec.  747;  Lancaster  vs.  Walsh,  4  M.  &  W.  16;  Lockhart  vs. 
Barnhart,  14  M.  &  W.  674;  Thatcher  vs.  England,  3  C.  B.  254; 
Tamer  vs.  Walker,  L.  E.  1  Q.  B.  641,  L.  E.  2  Q.  B.  301.  If  it 
contained  express  words  of  personal  promise,  and  the  corporation 
was  a  private  corporation,  or  the  agents  were  not  public  officers, 
the  mere  addition  of  their  office  would  not  exonerate  them. 
Simonds  vs.  Heard,  23  Pick.  (Mass.)  120,  125,  34  Am.  Dec.  41; 
Fullam  vs.  West  Broohfield,  9  Allen,  (Mass.)  1,  4;  Tucker  Mfg.  Co. 
vs.  Fairbanks,  98  Mass.  101,  104. 

The  only  argument  which  can  be  relied  on  for  a  different  con- 


456  Cases  on  Agency.  [Book  III 

elusion  here  is  that  the  defendants  ■were  public  oflBcers,  and  that  a 
more  liberal  rule  prevails  with  regard  to  them.  It  has  been  doubted 
how  far  there  is  such  a  difference  with  regard  to  agents  or  officers 
of  a  town;  Simonds  vs.  Heard,  supra;  Hall  vs.  Cockrell,  28  Ala.  507; 
Providence  vs.  Miller,  11  R.  I.  272,  23  Am.  Eep.  454;  and  these 
cases  show  very  plainly,  if  authority  for  the  proposition  is  needed, 
that  such  officers  will  bind  themselves  personally  if  they  purport  to 
do  so.  As  a  test  of  what  the  defendants  have  purported  to  do  by 
the  literal  meaning  of  their  words,  suppose  that  their  offer  had 
been  under  seal.  We  think  it  would  have  been  impossible  to  say  that 
the  only  meaning  of  the  signature  was  the  town  of  Milton.  See 
Codding  vs.  Mansfield,  7  Gray,  (Mass.)  272,  273. 

Perhaps  our  conclusion  is  a  little  strengthened  by  the  considera- 
tion that,  so  far  as  appears,  the  defendants  had  not  authority  to 
bind  the  town  for  more  than  $500.  Pub.  Sts.  c.  212,  §  12.  For 
although,  of  course,  an  agent  does  not  make  a  promise  his  own 
by  exceeding  his  authority  if  it  purports  to  bind  his  principal  only 
{Jefts  vs.  York,  4  Gush.  [Mass.]  371,  50  Am.  Dec.  791),  still,  when 
the  construction  is  doubtful,  the  fact  that  he  has  no  authority  to 
bind  the  supposed  princijoal  is  a  reason  for  reading  his  words  as 
directed  toward  himself.  Hall  vs.  Cockrell,  supra.  (Omitting 
other  considerations.) 

Judgment  on  the  verdict. 

Note. — See  Knight  vs.  Clark,  ante,  p.  434. 


(8  Meesok  &  Welsbt,  834.) 

EIGGINS  vs.   SENIOR. 

^English  Exchequer  of  Pleas,  June,  I84I.J 

Special  assumpsit.     The  opinion  sufficiently  states  the  case. 

Dundas  and  Crompton,  for  plaintiff. 

Cresswell,  John  Henderson  and  M.  Denman,  for  defendant. 

Parke,  B.  The  question  in  this  case,  which  was  argued  before 
ns  in  the  course  of  the  last  term,  may  be  stated  to  be,  whether  in 
an  action  on  an  agreement  in  writing,  purporting  on  the  face  of 
it  to  be  made  by  the  defendant,  and  subscribed  by  him,  for  the 
lale  and  delivery  by  him  of  goods  above  the  value  of  jElO,  it  is 


Chap.  Ill]  HiGGiNS  vs.  Sekior.  457 

competent  for  the  defendant  to  discharge  himself,  on  an  issue  on 
the  plea  of  non-assumpsit,  by  proving  that  the  agreement  was 
really  made  by  him  by  the  authority  of  and  as  agent  for  a  third 
person,  and  that  the  plaintiff  knew  those  facts,  at  the  time  when 
the  agreement  was  made  and  signed.  Upon  consideration,  we  think 
that  it  was  not;  and  that  the  rule  for  a  new  trial  must  be  discharged. 

There  is  no  doubt,  that  where  such  an  agreement  is  made,  it  is 
competent  to  show  that  one  or  both  of  the  contracting  parties  were 
agents  for  other  persons,  and  acted  as  such  agents  in  making  the 
contract,  so  as  to  give  the  benefit  of  the  contract  on  the  one  hand 
to,  {Garrett  vs.  Handley,  4  B.  &  C.  644;  Bateman  vs.  Pidllips,  15 
East,  272),  and  charge  with  liability  on  the  other,  {Paterson 
vs.  Gandasequi,  15  East,  62;,  the  unnamed  principals;  and 
this,  whether  the  agreement  be  or  be  not  required  to  be  in 
writing  by  the  Statute  of  Frauds;  and  this  evidence  in  no  way  con- 
tradicts the  written  agreement.  It  does  not  deny  that  it  is  binding 
on  those  whom,  on  the  face  of  it,  it  purports  to  bind;  but  shows  that 
it  also  binds  another,  by  reason  that  the  act  of  the  agent,  in  signing 
the  agreement,  in  pursuance  of  his  authority,  is  in  law  the  act  of 
the  principal. 

But,  on  the  other  hand,  to  allow  evidence  to  be  given  that  the 
party  who  appears  on  the  face  of  the  instrument  to  be  personally 
a  contracting  party,  is  not  such,  would  be  to  allow  parol  evidence 
to  contradict  the  written  agreement,  which  cannot  be  done.  And 
this  view  of  the  law  accords  with  the  decisions,  not  merely  as  to  bills 
of  exchange  {Soiuerly  vs.  Butcher,  2  0.  &  M.  371;  Letevre  vs.  Lloyd, 
5  Taunt.  749),  signed  by  a  person,  without  stating  his  agency  on  the 
face  of  the  bill;  but  as  to  other  written  contracts,  namely,  the  cases 
of  Jones  vs.  Littledale,  6  Ad.  &  Ell.  486;  1  Nev.  &  A.  677,  and 
Magee  vs.  Atkinson,  2  M.  &  W.  440.  It  is  true  that  the  case  of 
Jones  vs.  lAttledale,  might  be  supported  on  the  ground  that  the 
agent  really  intended  to  contract  as  principal,  but  Lord  Denmait, 
in  delivering  the  judgment  of  the  court,  lays  down  this  as  a  general 
proposition,  *Uhat  if  the  agent  contracts  in  such  a  form  as  to  make 
himself  personally  responsible,  he  cannot  afterwards,  whether  his 
principal  were  or  were  not  known  at  the  time  of  the  contract, 
relieve  himself  from  that  responsibility.'*  And  this  is  also  laid 
down  in  Story  on  Agency,  §  269.  Magee  vs.  Atkinson,  is  a 
direct  authority,  and  cannot  be  distinguished  from  this  case. 

The  case  of  Wilson  vs.  Hart,  7  Taunt.  295;  1  Moore,  45,  which 
was  cited  on  the  other  side,  is  clearly  distinguishable.     The  con- 


458  Cases  on  Agency.  [Book  III 

tract  in  writing  was,  on  the  face  of  it,  with  another  person  named 
Read,  appearing  to  be  the  principal  bnyer;  but  there  being  evi- 
dence that  the  defendant  fraudulently  put  forward  Read  as  the 
buyer,  whom  he  knew  to  be  insolvent,  in  order  to  pay  a  debt  from 
Read  to  himself  with  the  goods  purchased,  and  having  subsequently 
got  posession  of  them,  it  was  held,  on  the  principle  of  Hill  vs.  Per- 
roit,  3  Taunt.  274,  and  other  cases,  that  the  defendant  was  liable; 
and  as  is  observed  by  Mr.  Smith,  in  the  very  able  work  to  which 
we  were  referred  (Leading  Cases,  vol.  II,  page  125),  that  decision 
turned  altogether  upon  the  fraud,  and  if  it  had  not,  it  would  have 
been  an  authority  for  the  admission  of  parol  evidence  to  charge  the 
defendant  not  to  discharge  Read. 

Rule  discharged 


Chap.  II]  People  vs.  TowiiSHiP  Boaed,  469 


BOOK    IV. 

OF  THE  RIGHTS,  DUTIES  AND  LIABILITIES  ARIS- 
ING  OUT  OF  THE  RELATION. 


CHAPTER     II. 

OF  THE  DUTIES  AND  LIABILITIES   OF  THE  AGENT  TO   HIS 

PRINCIPAL. 


I. 

LOYALTY  TO  HIS  TEUSX. 


(11  Michigan,  222.) 
THE  PEOPLE  vs.  TOWNSHIP  BOARD  OF  OVERYSSEL. 

(Supreme  Court  of  Michigan,  April,  1863.) 

Application  for  mandamus  to  compel  the  township  to  issue  bonds 
to  pay  for  work  done  under  a  contract  to  improve  a  harbor. 
Defense  that  the  contract  was  void  because  four  of  the  Board  who 
let  the  contract  were  among  the  contractors  for  doing  the  work. 

Balch  (&  De  Yoe,  for  respondents. 
A.  Russell,  for  relators. 

Manning,  J.  Four  of  the  relators,  who  took  the  contract  to 
build  the  piers,  were  members  of  the  board  of  freeholders  organized 
under  the  act  for  the  purposes  therein  mentioned,  and  that  let 
the  contract  on  behalf  of  the  public.  So  careful  is  the  law  in 
guarding  against  the  abuse  of  fiduciary  relations,  that  it  will  not 
permit  an  agent  to  act  for  himself  and  his  principal  in  the  same 


460  Cases  on  Agency.  [Book  IV 

transaction,  as  to  bny  of  himself,  as  agent,  tlie  property  of  hia 
principal,  or  the  like.  All  snch  transactions  are  void,  as  it  respects 
his  principal,  unless  ratified  by  him  with  a  full  knowledge  of  all 
the  circumstances.  To  repudiate  them  he  need  not  show  himself 
damnified.  Whether  he  has  been  or  not  is  immaterial.  Actual 
injury  is  not  the  principle  the  law  proceeds  on  in  holding  such 
transactions  void.  Fidelity  in  the  agent  is  what  is  aimed  at,  and 
as  a  means  of  securing  it  the  law  will  not  permit  the  agent  to  place 
himself  in  a  situation  in  which  he  may  be  tempted  by  his  own  pri- 
vate interest  to  disregard  that  of  his  principal.  Hence,  the  law 
will  not  permit  an  administrator  to  purchase  at  a  public  sale  by 
himself,  property  of  the  estate  on  which  he  has  administered;  or  a 
guardian  the  property  of  his  ward,  when  sold  by  himself. 

All  public  officers  are  agents,  and  their  official  powers  are 
fiduciary.  They  are  trusted  with  public  functions  for  the  good  of 
the  public;  to  protect,  advance  and  promote  its  interests,  and  not 
their  own.  And  a  greater  necessity  exists  than  in  private  life  for 
removing  from  them  every  inducement  to  abuse  the  trust  reposed 
in  them,  as  the  temptations  to  which  they  are  sometimes  exposed  are 
stronger,  and  the  risk  of  detection  and  exposure  is  less.  A  judge 
cannot  hear  and  decide  his  own  case,  or  one  in  which  he  is  person- 
ally interested.  He  may  decide  it  conscientiously  and  in  accordance 
with  law,  but  that  is  not  enough.  The  law  will  not  permit  him  to 
reap  a  personal  advantage  from  an  official  act  performed  in  favor 
of  himself.  For  these  reasons  we  hold  the  contract  we  are  asked 
to  enforce  by  mandamus  void  as  against  public  policy.  See  Clute 
vs.  Barron,  2  Mich.  192;  Dwight  vs.  Blachnur,  2  Mich.  330,  57 
Am.  Dec.  130;  Ingerson  vs.  Starkweather,  Walk.  (Mich.)  Ch.  346; 
Beaubicn  vs.  Poulard,  Har.  (Mich.)  Ch.  206;  Walton  vs.  Torrey, 
Har.  Ch.  259;  /  erkins  vs.  Thompson,  3  N.  H.  144;  Olert  vs. 
Hammel,  3  Harrison  (N.  J.)  74;  Lazarus  vs.  Bryson,  3  Bin.  (Pa)  54. 

We  think  it  no  exception  to  the  rule  we  have  stated,  that  all  the 
the  contractors  were  not  members  of  the  board  of  freeholders,  or 
that  those  who  were  members  were  a  minority  of  the  board.  The 
rule  would  not  amount  to  much  if  it  could  be  evaded  in  any  such 
way.  It  might  almost  as  well  not  exist,  as  to  exist  with  such  an 
exception.     The  public  would  reap  little  or  no  benefit  from  it. 

Being  against  the  relators  on  this  part  of  the  case,  I  think  it 
unnecessary  to  notice  the  other  points  made  on  the  argument. 

The  mandamus,  I  think,  should  be  denied,  with  costs. 


Chap.  II]  People  vs.  Township  Boaed.  461 

Ohristianct,  J.,  delivered  a  concurring  opinion.  Campbell 
concurred  in  the  result,  but  held  the  contract  voidable  rather  than 
void. 


( 108  Illinois,  39,  48  Am.  Eep.  541.) 

DAVIS  vs.  HAMLIN. 

(Supreme  Court  of  Illinois,  November,  1883.J 

Bill  to  declare  that  Davis  held  a  certain  lease  in  trust  for  Ham- 
lin. Davis,  who  was  the  confidential  agent  of  Hamlin,  the  lessee 
of  a  theater,  shortly  before  Hamlin's  lease  expired  secretly  pro- 
cured a  lease  of  the  premises  for  a  new  term  to  himself,  denying 
to  Hamlin  that  he  was  competing  for  the  lease.  Plaintiff  had 
judgment  below. 

Egbert  Jamieson  and  L.  W.  Fierce,  for  appellants. 
Leonard  Swett  and  Quigg  &  TutMll,  for  appellee. 

Sheldon,  C.  J.  Under  the  facts  in  this  case  the  only  question 
arising  is,  whether  Hamlin,  by  reason  of  Davis'  agency  and  confi- 
dential relation  to  him,  is  entitled  to  the  benefit  of  the  lease  exe- 
cuted by  Borden  to  Davis. 

In  the  employment  of  an  agent,  the  principal  bargains  for  the 
disinterested  skill,  diligence  and  zeal  of  the  agent  for  his  own 
exclusive  benefit.  Upon  entering  into  the  employ  of  Ham- 
lin, there  rested  upon  Davis  the  duty  of  fidelity  to  his  employer's 
interest,  and  of  acting  for  the  furtherance  and  advancement  of  the 
business  in  which  he  was  engaged,  and  not  in  its  injury.  We  view 
the  whole  conduct  of  Davis  in  regard  to  the  lease  in  question  aa 
violative  of  the  duty  of  the  relation  in  which  he  stood  toward 
Hamlin.  His  first  offer  to  rent  the  premises  from  Borden,  about 
December,  1881,  was  an  act  hostile  to  the  interest  of  his  employer. 
He  offered  Borden  a  rent  which  was  nearly  $5,000  in  excess  of  the 
rent  which  Hamlin  was  then  paying. 

Borden  knew  that  this  was  an  offer  made  upon  an  exact  knowl- 
edge of  the  profits  of  the  business,  which  Davis,  from  his  employ- 
ment, had  peculiar  means  of  knowing,  and  the  natural  effect  would 
be  to  cause  Hamlin  to  pay  an  enhanced  rent  when  he  should  come 
to  ask  for  a  renewal  of  his  lease.     Davis  violated  the  duty  of  his  rela- 


462  Cases  on  Agency.  [^Book  IV 

tion  in  concealing  from  Hamlin  that  he  was  attempting  to  get 
the  lease.  Davis  excnses  his  denial  to  Hamlin  of  snch  attempt  by 
saying  this  was  on  January  17,  and  that  it  was  trne  that  at  that 
time  he  was  not  making  such  an  attempt,  but  had  given  it  over, 
not  up  to  that  time  having  received  any  response  from  Borden  to 
Davis'  offer  to  rent,  made  on  December  1st,  and  that  he  was  then, 
on  January  17,  making,  or  had  made,  preparations  to  go  into 
another  business.  Taking  this  to  be  so,  we  find  Davis  only  two 
days  later,  January  19,  in  the  act  of  negotiating  for  the  lease,  and 
making  an  offer  to  Borden  for  the  lease  which  the  latter  took  time 
to  consider.  Now  Davis  knew  that  it  was  of  vital  importance  to 
the  interest  of  Hamlin  that  the  latter  should  get  a  renewal  of 
his  lease;  that  Hamlin  was  most  anxious  to  ascertain  whether 
Pavis — who  alone,  with  Hamlin  had  exact  knowledge  of  the  profits 
of  the  business — was  in  competition  for  the  lease;  and  from  Davis, 
only  two  days  before,  denying  that  he  was  competing  for  the  lease, 
Davis  knew,  on  January  19,  that  the  belief  was  resting  on  Hamlin's 
mind,  from  what  Davis  had  told  him  two  days  before,  that  Davis 
was  not  a  competitor  for  the  lease.  Under  these  circumstances 
Davis  ought  to  have  disabused  the  mind  of  Hamlin  of  the  impres- 
sion, which  Davis  had  caused,  that  the  latter  was  not  attempting 
to  get  the  lease,  and  have  informed  Hamlin  of  what  the  fact  was, 
to  give  the  latter  the  opportunity  to  act  accordingly,  and  Davis' 
not  doing  so  was  a  breach  of  good  faith  toward  his  employer. 

The  obtaining  of  the  lease  by  Davis  amounted  to  a  virtual  de- 
struction of  his  employer's  whole  business  at  the  termination  of  the 
old  lease,  under  which  the  latter  was  holding.  By  some  ten  years 
of  labor  Hamlin  had  built  up  a  business  of  a  very  profitable  char- 
acter. There  was  a  good  will  attached  to  it,  which  was  valuable. 
Hamlin  was  intending  to  make  it  a  life-time  business.  Sustaining 
this  lease  to  Davis  at  the  expiration  of  Hamlin's  lease,  April  18, 
1883,  all  this  business  would  come  to  an  end,  and  pass,  good  will 
and  all,  from  Hamlin,  the  employer,  into  the  hands  of  Davis,  the 
employe.  And  this  would  have  been  accomplished  by  the  means  of 
a  renewal  lease  obtained  by  a  confidential  agent,  in  violation  of  the 
duty  of  his  relation,  and  acquired,  presumably,  because  of  peculiar 
means  of  knowledge  of  the  profitableness  of  the  business,  afforded 
him  by  the  confidential  position  in  which  he  was  employed.  A 
personal  benefit  thus  obtained  by  an  agent,  equity  will  hold  to  inure 
for  the  benefit  of  the  principal. 

Public  policy,  we  think,  must  condemn  such  a  transaction  as  that 


Chap.  II]  Davis  vs.  Hamlin.  463 

in  qtiestion.  To  sanction  it  would  hold  out  a  temptation  to  the 
agent  to  speculate  off  from  his  principal  to  the  latter's  detriment. 
Davis  very  well  knew  that  his  employer  would  be  willing  to  pay  a 
much  higher  rent  than  that  at  which  he  obtained  the  lease,  and 
that  he  could  dispose  of  the  lease  to  Hamlin  at  a  large  profit  to 
himself,  and  such  means  of  knowledge  was  derived  from  his  posi- 
tion as  agent.  If  a  manager  of  a  business  were  allowed  to  obtain  such 
a  lease  for  himself,  there  would  be  laid  before  him  the  inducement 
to  produce  in  the  mind  of  his  principal  an  under-estimate  of  the 
value  of  the  lease,  and  to  that  end,  may  be,  to  mismanage  so  as  to 
reduce  profits,  in  order  that  he  might  the  more  easily  acquire  the 
lease  for  himself. 

It  is  contended  by  the  appellant's  counsel  that  the  rule  we  apply, 
which  holds  an  agent  to  be  a  trustee  for  his  principal,  has  no 
application  to  the  case  at  bar,  because  Davis  was  not  an  agent  to 
obtain  a  renew?!  of  the  lease,  and  was  not  charged  with  any  duty 
in  regard  thereto;  that  this  was  but  the  specific  employment  to  engage 
amusements  for  the  theater,  and  that  he  was  an  agent  only  within 
the  scope  of  that  employment;  that  Hamlin  having  a  lease  which 
would  expire  April  16,  1883,  had  no  right  or  interest  in  the  prop- 
erty thereafter,  and  that  Davis  in  negotiating  for  the  lease  did  not 
deal  with  any  property  wherein  Hamlin  had  any  interest,  and  that 
Buch  property  was  not  the  subject  matter  of  any  trust  between 
them.  Although  there  was  here  no  right  of  renewal  of  the  lease  in 
the  tenant,  he  had  a  reasonable  expectation  of  its  renewal,  which 
courts  of  equity  have  recognized  as  an  interest  of  value,  secretly  to 
interfere  with  which,  and  disappoint,  by  an  agent  in  the  manage- 
ment of  the  lessee's  business,  we  regard  as  inconsistent  with  the 
fidelity  which  the  agent  owes  to  the  business  of  his  principal. 
There  was  the  good  will  of  the  business,  which  belonged  to  the 
business  as  a  portion  of  it,  and  this  the  agent  got  for  himself. 

It  is  further  argued  that  the  relation  here  between  Hamlin  and 
Davis  was  that  of  master  and  servant,  or  employer  and  employee, 
and  that  the  rule  has  never  been  applied  to  that  relation  as  a  class, 
and  that  the  classes  coming  within  that  doctrine  are  embraced 
within  the  list  of  defined,  confidential  relations,  such  as  trustee  and 
beneficiary,  guardian  and  ward,  etc.  The  subject  is  not  compre- 
hended within  any  such  narrowness  of  view  as  is  presented  on 
appellant's  part.  In  applying  the  rule,  it  is  the  nature  of  the  rela- 
tion which  is  to  be  regarded,  and  not  the  designation  of  the  one 
filling  the  relation.     Of  this  principle  Bispham  says:     "The  rule 


464  Oases  02T  Agency.  [Book  IV 

under  discussion  applies  not  only  to  persons  standing  in  a  direct 
fiduciary  relation  toward  others,  such  as  trustees,  executors,  attor- 
neys and  agents,  but  also  to  those  who  occupy  any  position  out  ol 
which  a  similar  duty  ought  in  equity  and  good  morals  to  arise/' 
Bisph.  Eq.  sec.  '93.  In  Greenlaw  vs.  Ei7ig,  5  Jur.  19,  Lord 
Chancellor  Cottenham,  speaking  of  this  doctrine  says:  **The 
rule  was  one  of  universal  application  affecting  all  persons  who  came 
within  its  principle,  which  was  that  no  party  could  be  permitted 
to  purchase  an  interest  when  he  had  a  duty  to  perform  which  was 
inconsistent  with  the  character  of  a  purchaser."  **  It  is  the  duty 
of  a  trustee,"  said  Lord  Brougham,  in  Hamilton  vs.  Wright,  9  CI. 
&  Fin.  Ill,  "to  do  nothing  for  the  impairing  or  destruction  of  the 
trust,  nor  to  place  himself  in  a  position  inconsistent  with  the 
interests  of  the  trust."  And  on  page  124:  "  Nor  is  it  only  on 
account  of  the  conflict  between  his  interests  and  his  duty  to 
the  trust  that  such  transactions  are  forbidden.  The  knowledge 
which  he  acquires  as  trustee  is  of  itself  sufficient  ground  of  dis- 
qualification, and  of  requiring  that  such  knowledge  shall  not  be 
capable  of  being  used  for  his  own  benefit  to  injure  the  trust." 

Although  this  was  said  of  a  trustee,  we  think  it  may  be  equally 
said  here  with  respect  to  Davis  and  the  business  which  he  was 
employed  to  manage.  The  rule  we  apply  as  to  its  broadness  in 
extent  is  aptly  expressed  in  the  American  note  to  Keech  vs.  Sand- 
ford,  1  Lead.  Cas.  in  Eq.  53,  as  follows:  "  Wherever  one  person 
\s  placed  in  such  relation  to  another  by  the  act  or  consent  of  that 
other,  or  the  act  of  a  third  person,  or  of  the  law,  that  he  becomes 
interested  for  him,  or  interested  with  him,  in  any  subject  of  prop- 
erty or  business,  he  is  prohibited  from  acquiring  rights  in  that 
subject  antagonistic  to  the  person  with  whose  interests  he  has 
become  associated." 

The  view  which  we  have  above  expressed  we  believe  to  be  in 
accordance  with  the  well  established  principles  of  equitable  juris- 
prudence. See  Devall  vs.  Burlridge,  4  W.  &  S.  (Pa.)  305;  Hdlvs. 
Frazicr,  22  Pa.  St.  320;  Fairman  vs.  Bavin,  29  111.  75;  Gilman, 
Clinton  <&  Springfield  R.  Co.  vs.  Kelly,  77  Id.  42G;  Bennett  vs. 
Vansychle,  4  Duer,  462;  Gillenwaters  vs.  Miller,  49  Miss.  150; 
Grwnleg  vs.  Webb,  44  Mo.  446,  100  Am.  Dec.  304. 
The  judgment  of  the  Aj)pellate  Court  must  be  affirmed. 

Judgment  affirmed. 

NOTB.— See,  also,  Vallette  vs.  Tedens,  122  HI.  607,  8  Am.  St.  Rep.  502. 


Chap.  II]  Gaedkeb   vs.  Ogdej;?.  405 

(22  New  York,  327,  78  Am.  Deo.  192.) 

GARDNER   vs.    OGDEN. 

{New  York  Court  of  Appeals,  December,  1860.) 

Plaintiff,  who  lived  in  New  York,  owned  real  estate  in  Chicago, 
and  placed  it  in  the  hands  of  Ogden,  Jones  &  Co.,  real  estate  agents 
there  for  sale.  Smith  and  Hathaway  were  clerks  of  Ogden,  Jones 
&  Co.  While  Ogden  was  absent  in  Europe,  Hathaway  wrote  to 
plaintiff,  in  the  name  of  the  firm,  saying  that  they  had  an  offer 
from  Mr.  Henry  Smith,  for  the  land  of  $7,500,  and  that  it  v.as 
doubtful  if  more  could  be  obtained.  Their  relation  to  the  firm  was 
not  disclosed.  Plaintiff  accepted  the  offer  relying  upon  the  advice 
given,  and  a  deed  from  plaintiff  and  a  note  signed  by  Smith  & 
Hathaway  secured  by  a  mortgage  back  upon  the  land  signed  by 
Smith  and  wife  were  exchanged.  Before  receiving  the  deed  but 
after  the  acceptance  of  the  offer,  Smith  sold  portions  of  the  lots  for 
$8,250,  and  another  portion  for  $1,000.  A  few  months  afterward, 
plaintiff  notified  Ogden,  Jones  &  Co.  of  his  dissatisfaction  with  the 
sale.  This  action  was  brought  charging  Ogden  as  a  party  to  the 
fraud,  asking  that  the  conveyance  be  set  aside  or  that  Smith  and 
Ogden  should  pay  the  highest  price  which  the  land  had  reached. 
Plaintiff  had  judgment  and  defendants  appealed. 

William  Curtis  Noyes,  for  appellant. 
John  H.  Reynolds,  for  respondents. 

Davies,  J.  (After  disposing  of  a  question  of  Jurisdiction).  It 
is  appropriate  here  to  examine  into  the  nature  and  character  of  the 
complaint  in  this  action,  and  the  grounds  upon  which  it  is  sought 
to  make  the  respective  defendants  liable.  The  defendant 
Ogden  is  charged  with  a  fraud  in  having  made  sale,  by  himself 
or  his  partners,  of  the  plaintiff's  lands,  at  a  price  far  below  their 
actual  value,  and  when  they  knew  that  they  were  selling  in  an 
advancing  market;  that  the  firm,  including  Ogden,  was  interested 
in  the  purchase  by  Smith  and  Hathaway,  their  clerks,  and  that  the 
sale  was  made  to  them  to  defraud  the  plaintiff;  and  the  plaintiff 
claims  to  recover  of  Ogden  the  highest  price  ^lich  the  land  ha^J 
attained,  by  reason  of  his  fraudulent  disposition  of  it.  The  plaint- 
iff's ground  of  claim  against  Smith  is,  that  he  stood  in  such  rela- 
30 


466  Cases  on  Agbitct.  [Book  IV 

tion  of  confidence  to  the  plaintiff  that,  in  making  the  purchase, 
the  law  judges  that  he  holds  the  subject-matter  of  it  as  the  plaint- 
iff's trustee,  and  that  the  plaintiff  can  call  him  to  account  as  such. 
This  the  plaintiff  can  do,  if  such  relation  of  confidence  subsists, 
by  requiring  a  reconveyance  of  the  property,  if  that  be  practicable 
with  an  account  and  paj-ment  of  the  rents  and  profits  accruing 
during  the  time  it  was  held  by  the  trustee,  or  if  that  is  not  prac- 
ticable, by  calling  on  the  trustee  to  account  and  pay  over  to  hia 
cestui  que  trust  all  that  he  has  realized  or  ought  by  due  diligence  to 
have  realized  from  the  trust  estate.     In  the  present  case,  the  plaint- 
iff has  elected  to  regard  Smith  as  his  trustee;  and  his  complaint  as  to 
him,  and  the  decree  of  the  special  term  proceeds  on  this  bsais.     The 
plaintiff",  therefore,  elects  to  affirm  the  sale  made  to  Smith.  He  can- 
not, uno  flatu,  affirm  it  as  to  him,  and  disaffirm  it  as  to  the  defend- 
ant Ogden.    It  is  difficult  to  see  how,  under  the  provisions  of  section 
167  of  the  code,  these  causes  of  action  may  be  united  in  the  same 
complaint.     Although  it  may  be  said  that  both  causes  of  action 
arise  out  of  the  same  transaction,  towit,  the  sale  of  the  plaintiff's 
lands  to   the  defendant  Smith,  yet  the  cause  of  action  against 
Ogden  is  for  an   injury  to  the   plaintiff's  property,  while   that 
against  Smith  is  a  claim  against  him  as  a  trustee  by  operation  of 
law. 

The  causes  of  action  joined  in  this  complaint  do  not  affect  both 
of  the  parties  defendant.  Ogden  is  not  affected  by,  or  in  any  way 
responsible  for.  Smith's  acts  as  the  plaintiff's  trustee,  and  the  com- 
plaint does  not  profess  to  make  him  liable  therefor.  So  Smith  is 
not  sought  to  be  made  responsible  for  the  fraudulent  acts  of  Ogden. 
On  the  plaintiff's  own  showing,  he  has  separate  and  distinct  causes 
of  action  against  each  of  the  defendants  and  which  cannot  be 
joined  under  the  code.  The  issues  are  separate;  the  relief  prayed 
against  each  is  distinct  and  different,  and  the  proofs  relied  on  to 
maintain  each  issue  are  of  an  entirely  dissimilar  character. 

We  have  looked  into  the  testimony  in  the  case  to  ascertain  if 
the  charge  of  fraud  against  the  defendant  Ogden  is  sustained  by 
the  testimony.  As  to  any  personal  fraud,  it  is  clear  he  was  not 
guilty  of  any,  for  he  was  absent  in  Europe  during  all  the  time  the 
negotiations  of  his  firm  with  Smith,  for  the  sale  of  the  plaintiff's 
lands  were  carried  on,  and  did  not  return  until  about  the  time  the 
complaint  in  this  action  was  verified.  The  plaintiff  entirely  failed 
to  show  any  fraud  on  the  part  of  the  firm  or  the  defendant  Ogden, 


Chap.  II]  Gaedneb  vs.  Ogden.  4G7 

of  snch  a  character  as  would  make  them  responsible  in  damages  for 
the  sale  of  the  lands  to  Smith. 

The  testimony  fully  sustains  the  position  that,  at  the  time  of  the 
Bale,  the  price  paid,  or  agreed  to  be  paid,  was  fair  and  adequate, 
and  that  the  purchase-money  was  adequately  secured,  and  it  fails 
to  show  that  Ogden's  firm,  or  any  member  of  it,  had  any  interest  in 
the  purchase.  The  affirmance  of  the  sale  by  the  plaintiff  is  a  com- 
plete answer  to  the  claim  for  damages  against  the  firm  for  fraud  in 
making  the  sale.  In  the  case  of  Massie  vs.  Waits,  6  Cranch,  (U. 
S.)  148,  one  Anderson,  who  made  the  survey  which,  it  was  alleged. 
Massie  had  located  in  his  own  name  instead  of  that  of  his  principal, 
was  made  a  party  defendant,  charging  him  with  fraud  in  making 
the  survey.  On  the  bearing,  the  complaint  was  dismissed,  with 
costs,  as  to  Anderson,  and  a  decree  made  against  Massie,  which  was 
affirmed  by  the  supreme  court  on  appeal. 

A  proper  disposition  of  this  cause,  as  to  the  defendant  Ogden, 
would  have  been  to  have  dismissed  the  complaint  as  to  him. 
The  supreme  court,  at  general  term,  having  reversed  the  judgment 
of  the  special  term  and  granted  a  new  trial,  and  the  plaintiff  hav- 
ing appealed  therefrom,  and  stipulated  that,  if  it  should  be 
affirmed,  judgment  absolute  might  be  rendered  against  him,  it  is 
now  proper  to  affirm  that  order  as  to  the  defendant  Ogden,  and 
render  judgment  absolute  in  his  favor,  by  dismissing  the  complaint 
as  to  him,  with  costs. 

It  only  remains  now  to  consider  the  cause  of  action  against  the 
defendant  Smith.  It  proceeds  upon  the  ground  that  Smith  stood 
in  such  relation  of  confidence  to  the  plaintiff  that  the  purchase 
made  by  him  was  made  as  the  plaintiff's  trustee,  and  that  he  can 
derive  no  benefit  therefrom. 

This  leads  to  an  examination  of  the  main  and  important  question 
in  the  case.  It  is  to  be  observed  in  the  commencement  that 
Ogden,  Jones  &  Co.  were  the  conceded  agents  of  the  plaintiff;  as 
such,  they  owed  a  duty  to  him  to  manage  and  dispose  of  his 
property  to  the  best  advantage.  It  is  admitted  by  the  answer  that 
Hathaway  and  the  defendant  Smith  were  clerks  of  the  firm  during 
the  years  1853,  1853,  and  up  to  July  12,  1854.  As  such  they  of 
course  had  access  to  the  correspondence  of  the  firm,  were  well 
acquainted  with  the  plaintiff's  urgency  to  sell,  his  motives  for  so 
doing,  and  all  the  facts  and  circumstances  connected  with  the 
property  known  to  the  plaintiff's  agents;  and  as  the  clerks  of  the 
firm,  they  owed  the  same  duty  to  the  plaintiff.     This  view  is  much 


468  Cases  on  Agency.  [Book  IV 

Btrengthened  by  the  circumstance  that  all  the  correspondence  with 
the  plaintiff  relating  to  the  sale  was  carried  on  by  Hathaway  in 
the  name  of  the  firm;  though,  in  the  important  letter  of  October 
26,  1853,  his  name  does  not  appear  as  the  writer.  It  was  written, 
apparently,  by  th6  firm,  and  signed  in  their  name. 

A  circumstance  is  disclosed  in  the  proof,  which  tends  strongly 
to  the  inference  that  Hathaway  was  either  interested  in  this  pur- 
chase from  the  beginning  or  intended  so  to  be.  I  am  strongly 
impressed  with  the  conviction  that  he  was  originally  a  party  in 
interest.  It  appears  that  the  plaintiff  and  his  sister,  Mrs.  Hall, 
were  the  owners  jointly  of  block  No.  1,  Carpenter's  addition,  in 
Chicago,  and  of  lots  4  and  5  in  block  17;  that  the  firm  of  Ogden, 
Jones  &  Co.  had  charge  of  this  jDroperty,  and  in  the  spring  of 
1852,  they  made  partition  thereof  between  Mrs.  Hall  and  the  plaint- 
iff, valuing  each  share  at  five  thousand  five  hundred  and  sixty  dol- 
lars. Hathaway,  in  the  letter  of  January  13,  1854,  informs  the 
plaintiff  that  he  had  become  the  owner  of  Mrs.  Hall's  lots;  and 
this  circumstance  presents  a  motive  on  his  part  to  become  the 
owner  of,  or  interested  in,  the  share  of  the  lots  owned  by  the 
plaintiff.  In  addition  to  this,  he  became  equally  bound  with 
Smith  for  the  payment  of  the  purchase  money,  and  this,  coupled 
with  the  conceded  fact  that  he  is  now  interested  with  him,  leads 
to  the  inevitable  conclusion  that  he  was  so  originally,  or,  at  least, 
intended  to  be. 

If  Ogden,  Jones  &  Co.  had  become  the  purchasers,  instead  of 
their  clerks  Smith  and  Hathaway,  what  would  have  been  the 
plaintiff's  rights  in  the  premises?  The  rule  is  clearly  laid  down  by 
that  learned  and  eminent  writer.  Lord  St.  Leonards,  in  his  work 
on  vendors  and  purchasers  (see  Sugden  on  Vendors,  13th  ed.  566); 
he  says:  "  It  may  be  laid  down  as  a  general  proposition  that 
trustees,  who  have  accepted  the  trust  (unless  they  are  nominally 
Buch,  as  trustees  to  preserve  contingent  remainders),  agents,  com- 
missioners of  bankrupts,  assignees  of  bankrupts,  or  their  partners 
in  business,  solicitors  to  the  commission,  auctioneers,  creditors  who 
have  been  consulted  as  to  the  mode  of  sale,  counsel,  or  any  person 
who  being  employed  or  concerned  in  the  affairs  of  another,  have 
acquired  a  knowledge  of  his  property,  are  incapable  of  purchasing 
such  property  themselves,  except  under  the  restriction  which  will 
shortly  be  mentioned.  For,  if  persons  having  a  confidential  char- 
acter were  permitted  to  avail  themselves  of  any  knowledge  acquired 
in  that  capacity,  they  might  be  induced  to  conceal  their  information, 


Chap.  II  ]  Gabdijkb  vb.  Ogden.  409 

and  not  to  exercise  it  for  the  benefit  of  the  persons  relying  on  their 
integrity.  The  characters  are  inconsistent.  Emptor  emit  quam 
mi nimo potest,  venditor  vendit  quam  mazimo  potest." 

In  Fox  vs.  Mackreth,  2  Bro.  C.  C.  400,  it  was  held  by  the 
master  of  the  rolls  (afterwards  Lord  Kenyon),  and  Lord  Chancellor 
Thurlow,  that  a  trustee  for  the  sale  of  estates  for  the  payment  of 
debts,  who  purchased  them  himself  by  taking  undue  advantage  of 
the  confidence  reposed  in  him  by  the  plaintiff,  and  who  resold  the 
same  premises  at  a  greatly  advanced  price,  should  be  regarded  as 
a  trustee,  as  to  the  sums  produced  by  such  second  sale,  for  the 
original  owner.  This  decree  was  affirmed  in  the  House  of  Lords 
in  March,  1791.  Mackreth  vs.  Fox,  4  Brown  P.  C.  258.  Soon 
after  this,  Mackreth  the  delinquent  trustee,  smarting  under  the 
just  principles  of  law  laid  down  by  the  courts,  sought  to  avenge 
himself  for  the  wrong  which  he  imagined  had  been  done  to  him, 
by  challenging  Sir  John  Scott,  afterwards  Lord  Eldon,  one  of  the 
leading  counsel  for  Fox,  the  plaintiff.  No  notice  was  taken  of  this 
challenge  by  Sir  John  Scott:  Twiss's  Life  of  Lord  Eldon,  Vol.  1, 
p.  218.  And  this  case  has  ever  remained  as  a  leading  authority, 
and  one  of  peculiar  interest. 

In  Hall  vs.  Koyes,  3  Bro.  C.  C.  483,  a  bill  was  filed  by  a  widow 
of  a  cestui  que  trust,  ten  years  after  the  sale  of  trust  property  by 
three  trustees  to  one,  and  the  purchaser  was  held  a  trustee  for  the 
widow.  And  it  is  a  fact  to  be  noted  that  the  price  given  by  the 
trustee  was  more  than  could  have  been  got  from  anyone  else. 

In  Croioe  vs.  Ballard,  3  Bro.  C.  C.  117,  the  lord  chancellor 
Bays:  **  Ballard  undertakes  to  sell  a  legacy,  and  pretends  he  took 
great  pains  so  to  do;  then  he  buys  it  himself.  This  is  alone 
sufficient  to  set  aside  the  transaction.  It  is  impossible,  at  any  rate, 
that  the  person  employed  to  sell  can  be  permitted  to  buy.^' 

In  Whichcote  vs.  Lawrence,  3  Ves.  740,  the  lord  chancellor 
Bays,  **  the  real  proposition,  which  is  very  plain  in  point  of  equity, 
and  a  principle  of  clear  reasoning,  is  that  he  who  undertakes  to 
act  for  another  in  any  matter,  shall  not  in  the  same  matter  act  for 
himself.  Therefore,  a  trustee  to  sell  shall  not  gain  any  advantage 
by  being  himself  the  person  to  buy." 

This  principle  was  acted  on  by  Lord  King,  in  Keech  vs.  San- 
ford,  Sel.  Cas.  Ch.  Gl,  October  31,  172G.  He  there  said:  "It 
might  seem  hard  that  the  trustee  is  the  only  person  of  all  man- 
kind who  might  not  have  the  lease;  but  it  is  very  proper  that 


470  Cases  on  Agency.  [Book  IV 

the  rule  precluding  him  from  purchasing  should  he  strictly  pur- 
sued, and  not  in  the  least  relaxed/' 

In  Whelpdale  vs.  Cookson,  1  Ves.  sen.  8,  Lord  Chancellor  IIard- 
WiCK  would  not  allow  a  purchase  by  a  trustee  to  stand,  although 
another  person,  being  the  highest  bidder,  bought  it  for  him  at  a 
public  sale.  He  said  that  he  knew  the  dangerous  consequences  of 
permitting  it;  and  it  was  not  enough  for  the  trustee  to  say  you  can- 
not prove  any  fraud,  as  it  is  in  his  power  to  conceal  it.  The  whole 
doctrine  is  very  fully  reviewed  by  Lord  Eldon,  chancellor,  in  Ex 
parte  James,  8  Ves.  337. 

It  were  useless  to  cite  all  the  authorities  in  the  books  on  this 
point.  A  few  additional  ones,  as  being  of  peculiar  significance  and 
importance,  will  be  referred  to.  Notice  particularly  should  be 
taken  of  the  case  of  York  Buildings  Association  vs.  Mackenzie. 
It  first  appeared  in  8  Brown  P.  C.  by  Torn  in  Appendix  42;  but 
has  since  been  reported  in  3  Baton,  (4,  Sec.  App.  Cas.)  378. 

Chancellor  Kent,  in  Davoue  vs.  Fanidug,  2  Johns.  Ch.  252, 
Bays  of  it  that  it  is  a  case  too  important  to  be  omitted.  He  says  that 
it  is  a  complete  vindication  of  the  doctrine  he  applied  in  that  case, 
and  that  considering  the  eminent  character  of  the  counsel  who 
were  concerned  in  that  case,  and  who  had  since  filled  the  highest 
judicial  stations,  and  the  ability  and  learning  which  they  displayed 
in  the  discussion,  it  is,  perhaps,  one  of  the  most  interesting  on  a 
mere  technical  rule  of  law,  that  is  to  be  met  with  in  the  annals  of 
our  jurisprudence.  He  added  that  the  reasons  of  the  House  of 
Lords,  for  setting  aside  the  sale,  are  not  given,  and  that  we  are  left 
to  infer  them  from  the  arguments  upon  which  the  appeal  was 
founded.     They  have  now  appeared  in  the  report  in  3  Baton. 

It  is  stated  by  the  reporter,  in  a  note  (1  Macq.  481),  that  the 
argument  of  this  case  lasted  sixteen  days,  at  two  sessions  of  parlia- 
ment (1794  and  1795).  Judgment  was  given  on  the  seventeenth. 
Lord  LouGHBOiiouGH  was,  indeed,  chancellor  then;  but  the  tra- 
dition is  that  Lord  Thurlow,  (who  has  recently  delivered  the 
opinion  in  Fox  vs.  Mackreth,  2  Bro.  C.  C.  400j,  took  the  chief  part 
In  the  hearing  and  deliberation.  A  person  present  at  the  time  the 
judgment  was  pronounced,  says,  in  a  note  to  the  reporter:  *'  I  have 
a  very  strong  recollection  of  the  very  impressive  speech  of  Lord 
Thurlow  on  the  appeal  of  York  Buildings  Co.  vs.  Mackenzie.  I 
was  present.  Lord  Loughborough,  the  chancellor,  spoke  after 
Lord  Thuelow.'*    The  appellants  were  an  insolvent  company,  and 


Chap.  II]  Gabdnbe  vs.  Ogden.  471 

their  estate  was  sold  by  the  order  of  the  court  of  session,  at  a  public 
judicial  sale,  to  satisfy  creditors. 

The  course  of  such  sales  is  to  set  up  the  property  at  a  value  fixed 
upon  by  the  court,  which  is  called  the  upset  price,  and  which  is 
fixed  on  information  obtained  and  communicated  to  the  court  by 
the  common  agent  of  the  court,  who  has  the  management  of  all  the 
outdoor  business  of  the  cause.  The  respondent  in  the  case  was  the 
common  agent,  and  he  purchased  for  himself  at  the  upset  price, 
no  person  appearing  to  bid  more,  and  the  sale  was  confirmed  by 
the  court;  and  in  the  course  of  eleven  years'  possession  he  had 
expended  large  sums  for  buildings  and  improvements.  There  was 
no  question  as  to  the  fairness  or  integrity  of  the  purchase.  The 
object  of  the  appellants  was  to  set  aside  the  sale,  on  the  ground 
that  the  purchaser  was  the  common  agent  in  behalf  of  all  parties 
to  procure  information  and  attend  the  sale,  and  stood  in  the  nature 
of  a  trustee,  and  therefore  disabled  to  purchase. 

On  the  part  of  the  appellants,  it  was  contended  that  the  sale  in 
question  was  ipso  jure,  void  and  null,  because  the  respondent, 
from  his  oflBce  of  common  agent,  was  under  a  disability  and 
incapacity  which  precluded  him  from  .being  a  purchaser.  "  The 
office  of  common  agent,  in  a  ranking  and  sale,  infers  a  natural  dis- 
ability, which,  ex  vi  termini,  imports  the  highest  legal  disability, 
because  a  law  which  flows  from  nature,  being  founded  on  the 
reason  and  nature  of  the  thing,  is  paramount  to  all  positive  law; 
that  it  is  of  no  moment  what  the  particular  name  or  description, 
whether  of  character  or  ofiftce,  situation  or  position,  is,  on  which 
the  disability  attaches."  "  Tutor,  ait  Paulus,  rem  pupilli  emere 
non potest;  idemque  porrigendum  est  ad  similia,  id  est,  ad  curatores, 
procuratores,  et  qui  negotia  aliena  gerunt; "  Lib.  3  sec.  7  ff.  De 
Contrac.  Emp.,  etc.  The  reason  of  this  law  is  implied  in  the 
nature  of  the  cases  to  which  it  is  extended.  Its  energy  does  not 
consist  in  a  distinction  of  mere  words  that  a  tutor  cannot  be  both 
seller  and  buyer,  neither  does  it  rest  on  another  applicable  enough 
adage,  *'  Nemo  potest  in  rem  suam  auctor  esse." 

This  sententia  of  the  Roman  juris-consult  is,  that  the  tutor  can- 
not buy  his  pupil's  estate  because  he  has  a  trust  and  charge  for  his 
pupil,  and  therefore  it  is  that  the  law  is  extended  ad  similia,  and 
to  all,  qui  negotia  aliena  gerunt.  By  this  principle,  as  the  sound 
and  substantial  reason  of  the  law,  is  to  be  interpreted  that  other 
text  of  the  Pandects  which  says:  "  Item  ipse  tutor,  et  e7nptoris  et 
venditoris  officio  fungi  non  potest."    Lib.  5  sec.  7  ff.  De  Auct.  and 


472  Cases  on  Agency.  [Book  IV 

Cons.  Tut.  and  Cur.  These  views  were  not  controverted  by  the 
counsel  for  the  respondent;  but  they  insisted  that  the  sale  could  be 
maintained  on  other  grounds.  The  opinions  in  the  house  of  lords 
were  given  by  Lords  Thuelow  and  Loughborough.  The  former 
said  that  all  the  gentlemen  admit  that  it  was  the  duty  of  the  agent  to 
carry  on  the  sale  to  the  utmost  advantage  for  the  benefit  of  the 
creditors  and  those  interested  in  the  residue;  and  taking  it  to  be  so, 
one  side  said,  that  being  your  situation,  it  is  utterly  impossible  for 
you  to  perform  that  duty  in  such  a  manner  as  to  derive  an  advantage 
to  yourselves. 

He  said  this  seems  to  be  a  principle  so  exceedingly  plain  that  it 
is,  in  its  own  nature,  indisputable;  for  there  can  be  no  confidence 
placed  unless  men  will  do  the  duty  they  owe  to  their  constituents, 
or  be  considered  to  be  faithfully  executing  it.  In  these  views  the 
Chancellor  concurred,  and  the  sale  was  set  aside.  Lord  Eldon  and 
Sir  W.  Grant  designate  this  as  the  great  case,  and  frequently  refer 
to  it;  and  Lord  St.  Leonards,  in  his  work  on  Vendors  and  Pur- 
chasers, vol.  3,  p.  240,  calls  it  likewise  the  great  case,  and 
frequently  refers  to  it. 

In  Jeffrey  vs.  Aiken,  4  Sess.  Cas.,  1st  ser.,  729,  decided  in 
Scotland  in  June,  1826,  the  lord  ordinary  observed,  it  is  impossible 
to  hold  that  the  seller  can  also  be  the  buyer  of  the  subject,  after 
the  judgment  of  the  house  of  lords  in  the  case  of  York  Buildings 
Company  vs.  Mackenzie. 

In  Hughes  vs.  Watson  (not  reported),  decided  also  in  Scotland, 
January  20,  1846,  the  same  rule  as  laid  down  in  Mackenzie's  case 
was  reiterated  and  adhered  to. 

Lord  Jeff ry  said:  "The  principle  involved  in  this  case  is  a 
very  familiar  and  general  one  in  our  laws.  No  person  can  be  actor 
in  rem  suam.  The  stringency  of  the  maxim  has  been  ruled  and 
held  settled  by  the  house  of  lords  in  the  case  of  Mackenzie.  *  *  • 
It  is  now  presumptio  juris  et  de  jure,  that  where  a  person  stands 
in  these  inconsistent  relations  of  both  buyer  and  seller,  there  are 
dangers,  and  it  is  not  relevant  to  say  that  it  is  impossible  there 
could  be  any  in  the  particular  case.  I  should  be  sorry  to  think 
that  any  doubt  was  thrown  on  this  rigorous  principle,  which  has 
been  established  both  here  and  in  the  other  end  of  the  island." 
The  whole  subject  is  elaborately  reviewed  in  the  case  of  the  Aler- 
deen  R.  R.  Co.  vs.  Blaikie  Brothers,  1  Macq.  461,  decided  in  the 
house  of  lords,  July  20,  1854. 

Lord  Ceanwoeth,  in  his  opinion,  says:     "An  agent  has  duties 


Obap.  II]        Gardneb  vs.  Ogdek.  4:73 

to  discharge  of  a  fiduciary  character  toward  hia  principal;  and  it  is 
a  rale  of  universal  application  that  no  one  having  such  duties  to 
discharge  shall  be  allowed  to  enter  into  engaijements  in  which  ho 
has,  or  can  have,  a  personal  interest  conflicting,  or  which  possibly 
may  conflict,  with  the  interests  of  those  whom  he  is  bound  to  pro- 
tect. So  strictly  is  this  principle  adhered  to  that  no  question  is 
allowed  to  be  raised  as  to  the  fairness  or  unfairness  of  a  contract  so 
entered  into.  It  obviously  is,  or  may  be,  impossible  to  demonstrate 
how  far  in  any  particular  case  the  terms  of  such  a  contract  have 
been  the  best  for  the  cestui  que  trust  which  it  was  possible  to 
obtain.  It  may  sometimes  happen  that  the  terms  on  which  a  trustee 
has  dealt,  or  attempted  to  deal,  with  the  estate  or  interests  of  those 
for  whom  he  is  a  trustee,  have  been  as  good  as  could  have  been 
obtained  from  any  other  person;  they  may  even,  at  the  time,  have 
been  better.  But  still,  so  inflexible  is  the  rule,  that  no  inquiry  on 
that  subject  is  permitted.  The  English  authorities  on  this  subject 
are  numerous  and  uniform.*' 

In  these  views  Lord  Bkougham  concurred,  p.  483.  To  the  same 
point  may  be  cited  Leivis  vs.  Hlllman,  3  H.  L.  Cas.  607,  G29,  630. 
In  III  re  Bloyes'  Trust,  1  Macn.  &  G.  488,  at  p.  495,  the  rule  is 
declared  clearly  and  emphatically. 

The  same  line  of  decision  in  this  state  has  been  uniform,  and 
the  cases  are  numerous  where  it  has  been  recognized,  affirmed,  and 
rigorously  applied.  It  would  appear  to  have  been  first  enunciated 
in  the  supreme  court  in  Bergen  vs.  Bennett,  1  Cai.  Cas.  19,  2 
Am.  Dec.  281,  per  Kent,  J.  It  was  distinctly  recognized  in 
that  case  as  a  sound  and  established  rule.  See  pp.  19,  20.  It 
received  the  unequivocal  indorsement  of  the  Court  of  Errors  in 
Munro  vs.  Allaire,  2  Cai.  Cas.  183,  2  Am.  Dec.  330. 

Benson,  J.,  in  deliveriug  the  opinion  of  the  court,  says:  **  It 
is  a  principle  that  a  trustee  can  never  be  a  purchaser;  and  I  assume 
it  as  not  requiring  proof  that  this  principle  must  be  admitted, 
not  only  as  established  by  adjudication,  but  also  as  founded 
in  indispensable  necessity,  to  prevent  that  great  inlet  of  fraud 
and  those  dangerous  consequences  which  would  ensue  if  trustees 
might  themselves  become  purchasers,  or  if  they  were  not  in  every 
respect  kept  within  compass.  Although  it  may,  however,  seem  hard 
that  the  trustees  should  be  the  only  persons  of  all  mankind  who 
may  not  purchase,  yet,  for  the  very  obvious  consequences,  it  is 
proper  that  the  rule  should  be  strictly  pursued,  and  not  in  the 
least  relaxed.*' 


474  Cases  on  Age2s:ct.  [Book  IV 

Chancellor  Kent,  in  Davoue  vs.  Fanning,  2  Johns.  Ch.  252,  says 
that  he  cannot  but  notice  the  precision  and  accuracy  with  which 
the  rule  and  the  reason  of  it  are  here  stated. 

The  next  case  in  which  this  rule  is  affirmed  is  that  of  Jachson  vs. 
Van  Dalfsen,  5  Johns.  43,  in  the  supreme  court.  The  whole  sub- 
ject received  a  most  elaborate  and  searching  examination  by  Chan- 
cellor Kent,  Davoue  vs.  Fanning,  2  Johns.  Ch.  252.  The  authori- 
ties are  fully  and  carefully  reviewed,  and  the  powers  of  his  great 
mind  and  his  varied  learning  were  brought  to  bear  upon  this  dis- 
cussion. It  is  the  great  case  in  our  courts  on  this  subject,  and  it 
will  bear  a  favorable  comparison  with  any  other  examination  of 
this  question.  It  settled  the  rule  for  this  state,  and  has  been  recog- 
nized and  adopted  as  authority  by  many  of  the  courts  of  the  sister 
states. 

In  harmony  with  these  views  are  the  cases  of  DeCaters  vs.  LeRay 
de  Chaumont,  3  Paige,  178;  Slade  vs.  Van  Vechfcn,  11  Id.  26; 
Poillon  vs.  Martin,  1  Sandf.  Ch.  569;  Jewett  vs.  Miller,  10  N.  Y. 
402,  61  Am.  Dec.  751;  Van  Fpps  vs.  Van  Epps,  9  Paige,  237; 
Torrey  vs.  Bank  of  Orleans,  9  Id.  649,  8.  c.  7  Hill,  260;  Hawley 
vs.  Cramer,  4  Cow.  717;  Dohson  vs.  Racey,  8  N.  Y.  216;  Moore  vs. 
Moore,  5  Id.  256. 

This  subject  was  very  elaborately  discussed  in  the  case  of 
Michoud  vs.  Girod,  4  How.  ( U. S. )  503.  The  very  able  opinion  of  Mr. 
Justice  Wayne  leaves  nothing  new  to  be  said.  It  contains  a 
reference  to  and  review  of  the  cases  and  text  writers  bearing  upon 
the  question.  Interesting  cases  on  this  question  may  also  be  found 
in  Beeson  vs.  Becson,  9  Pa.  St.  284;  IJill  vs.  Frazier,  22  Id.  320; 
Rosenherger's  Appeal,  26  Id.  67;  and  Garrard  vs.  Pittsburg  <&  G, 
R.  R.  Co.,  29  Id.  154. 

It  is  undeniable,  from  these  authorities,  that  if  the  purchase  in 
this  case  had  been  made  by  the  firm  of  Ogden,  Jones  &  Co.,  it  conld 
not  be  sustained.  Does  the  same  principle  apply  to  the  purchase 
made  by  Smith,  their  clerk?  It  is  not  perceived  upon  what  sub- 
stantial ground  a  distinction  can  be  drawn.  Whatever  duty  liis 
principals  owed  to  the  plaintiff,  he  equally  owed  the  same.  The 
rule,  as  we  have  seen,  as  laid  down  by  Sugden,  and  which  the 
authorities  sustain,  is  that  the  disability  extends  to  all  persons  who, 
being  employed  or  concerned  in  the  affairs  of  another,  acquire  a 
knowledge  of  his  property.  Now,  it  is  undeniable,  that  Hathaway 
and  Smith  were  employed  or  concerned  in  the  affairs  of  the  plairt- 


Chap.  II  ]  Gard  n  ek  vs.  Oqden.  475 

iff  relating  to  these  lands,  and  acquired  knowledge  concerning 
them. 

The  defendant  Smith  was  the  clerk,  or  assistant,  of  his  principals. 
He  was  their  agent,  and  employed  in  and  about  their  business. 
Whatever  disabilities  they  labored  under  equally  attached  to  him. 
It  would  work  an  entire  abrogation  of  the  rule  to  hold  the  princi- 
pal subject  to  the  operation  of  this  rule,  and  exempt  his  clerks  and 
agents  from  its  effect.  It  would  be  opening  the  door  to  its  evasion, 
BO  that  it  would  lose  all  of  its  vitality  and  virtue.  The  courts  have 
not  so  dealt  with  the  application  of  this  rule.  It  has  been  held 
that  the  partners  in  business  of  an  assignee  in  bankruptcy  are 
equally  disqualified  from  purchasing  as  the  assignee  himself:  Ex 
parte  Burnett,  7  Jur.  116.  It  has  been  held  to  disqualify  the  solici- 
tor to  a  commission  in  bankruptcy  from  becoming  a  purchaser  at  a 
Bale  of  the  bankrupt's  effects:  Owen  vs.  Foulkes,  6  Ves.  630,  note 
h;  Ex  parte  James,  8  Id.  337;  Ex  parte  Lindwood  and  Ex  parte 
Churchill,  before  Lord  Rosslyk,  cited  8  Id.  343;  Ex  parte  Bennett, 
10  Id.  381. 

The  precise  point  now  under  consideration  arose  before  Vice 
Chancellor  Sandfoed,  in  Poillon  vs.  Martin,  1  Saudf.  Ch.  5C9, 
where  he  held  that  the  clerk  of  an  attorney  was  as  much  prohibited 
from  purchasing  from  a  client  as  the  attorney  himself;  that  the 
principle  of  the  rule  extended  as  well  to  him  as  to  the  attorney 
himself. 

I  think  this  is  the  spirit  of  all  the  authorities,  and  that  the 
honesty  and  fairness  of  transactions  between  principals  and  their 
agents  demand  a  firm  adherence  to  these  rules,  and  to  bring  within 
their  operation  not  only  the  agent  himself,  but  those  in  his  imme- 
diate employ,  and  who  are  engaged  in  the  transaction  of  his 
business,  which  is  necessarily  the  business  of  the  agent's  principal. 
It  cannot  be  disguised  that  this  sale  was  negotiated  by  one  clerk 
with  another  clerk  of  the  plaintifl''s  agents.  All  the  mischiefs 
which  the  rules  adverted  to  were  designated  to  prevent  are  appar- 
ent in  this  case. 

Assuming  that  it  has  been  shown  that  the  purchase  made  by 
Smith  is  obnoxious  to  the  objections  which  have  been  urged,  it 
follows  that  the  plaintiff  is  entitled  to  a  re-conveyance  of  his  lands. 
But  it  appears  that  Smith,  by  his  own  act,  in  selling  a  portion  of 
the  lands,  is  incapable  of  doing  that  equity  which  the  law  com- 
mands, it  follows  that  the  plaintiff  is  entitled  to  the  proceeds  of 
such  Bales.      The  decree,  or  judgment,  of  the  special  term  was. 


476  Cases  on  Agekcy.  [Book  IV 

therefore,  correct,  in  requiring  him  to  reconvey  to  the  plaintiff  all 
Buch  portions  of  the  lands  as  remain  unsold,  and  to  account  to  him 
and  pay  o\er  the  proceeds  of  all  those  parts  which  have  been  sold. 
We  see  no  objection  which  Smith  can  properly  make  to  that  part 
of  the  decree  which  gives  to  him  the  election  to  pay  to  the  plaintiff 
the  ascertained  value  of  the  plaintiff's  lands  in  lieu  of  such  recon- 
veyance and  accounting. 

The  order  at  the  General  Term,  granting  a  new  trial,  so  far  as 
it  relates  to  the  defendant  Smith,  is  reversed,  and  the  judgment 
of  the  Special  Term,  as  to  him,  afiQimed  with  costs.  And  the  order 
at  the  General  Term,  granting  a  new  trial  as  to  the  defendant 
Ogden,  is  affirmed;  and  in  pursuance  of  the  plaintiff's  stipulation, 
judgment  absolute  is  rendered  against  him  in  favor  of  the  defend- 
ant Ogden,  by  the  dismissal  of  the  complaint  against  him,  with 
costs. 

All  the  judges  concurred.  Ordered  accordingly. 

Note. — See,  also,  Dutton  vs.  Willner,  52  N.  Y.  812  ;  Dodd  vs.  WaTceman, 
26  N.  J.  Eq.  484  ;  Lajferty  vs.  Jelley,  22  Ind.  471 ;  Eingo  vs.  Binns,  10  Pet. 
(U.  S.)  269.  The  rule  which  forbids  an  agent  from  dealing  with  himself 
on  his  principal's  account,  cannot  be  defeated  by  usage.  Robinson  vs.  Moh 
fc«,  L.  R.  7  H.  L.  803 ;  Butcher  vs.  Krauth,  14  Bush.  (Ky.)  713. 


(133  Massachusetts,  415.) 

GREENFIELD  SAVINGS  BANK  vs.  SIMONS. 

(Supreme  Judicial  Court  of  Massachusetts,  November,  1S8S.J 

Action  to  recover  damages  for  breach  of  duty  as  agent.  The 
opinion  states  the  facts. 

A.  L.  Soule  and  A.  De  Wolf,  for  defendant. 

W.  S.  B.  Hopkins  and  /.  A.  Aiken,  for  the  plaintiff. 

"W.  Allen,  J.  The  defendant  was  authorized  and  instructed  by 
the  plaintiff  bank  to  sell,  for  its  benefit,  its  rights  in  the  new  stock 
in  a  national  bank,  and  undertook  the  duty.  In  making  the  sale, 
he  acted  as  the  agent  for  the  plaintiff  to  sell  the  specified  property, 
and  not  as  trustee.  The  facts  that  he  was  the  treasurer  of  the 
plaintiff,  and  that,  as  one  of  the  trustees  and  a  member  of  the 
finance  committee,  he  took  part  in  authorizing  himself  as  treasurer 


Chap.  II]  Savings  Bank  vs.  Simoks.  477 

to  sell  the  rights,  do  not  tend  to  show  that,  in  malcing  the  sale,  he 
acted  as  a  trustee  or  a  member  of  the  committee,  and  not  as  agent. 

In  exercising  his  functions  as  agent,  it  was  the  duty  of  the  defend- 
ant, and  his  promise  was  implied  to  use  reasonable  fidelity,  diligence 
and  skill  to  sell  to  the  best  advantage  of  his  principal.  His 
authority  was  to  sell  for  not  less  than  a  certain  price,  and  his  duty 
was  to  sell  for  as  high  a  price  as  could  be  obtained  by  the  exercise 
of  reasonable  diligence  and  skill.  In  executing  this  duty,  he 
immediately  upon  receiving  authority,  sold  the  rights  to  himself 
and  other  members  of  the  committee  which  had  authorized  the 
sale,  and  who  were  all  also  directors  in  the  national  bank,  at  the 
minimum  price  authorized,  without  offering  the  stock  to  others,  or 
making  any  attempt  to  find  purchasers  at  a  higher  price.  The 
report  finds  that  the  rights  sold  for  thirty  dollars  a  right,  had  a 
cash  value  of  forty-five  dollars  each,  and  would  have  realized  that 
value  in  cash  if  properly  exposed  for  sale.  The  court  properly 
ruled  that  such  acts,  without  proof  of  express  fraud,  were  fraudu- 
lent in  law,  and  that  the  plaintiff  had  a  right  to  recover  damages 
for  the  loss  caused  by  them. 

It  appeared  that  the  record  of  the  doings  of  the  finance 
committee  authorizing  the  sale  was  read  and  approved  at 
a  meeting  of  the  trustees,  and  that  the  amount  received 
for  a  sale  of  the  rights  was  entered  on  the  plaintiff's 
cash-book  by  the  defendant,  and  the  defendant  contends 
that  the  judge  erred  in  not  ruling,  as  matter  of  law,  upon  this  evi- 
dence, that  the  plaintiff  had  affirmed  and  ratified  the  transaction. 
But  we  think  that  the  refusal  so  to  rule  was  clearly  right.  The 
vote  was  the  authority  under  which  the  defendant  acted,  and  it 
does  not  appear  that  the  attention  of  the  trustees  was  called  to  the 
entry  upon  the  cash-book,  or  that  any  action  was  taken  in  regard 
to  it. 

The  rule  of  damages  laid  down  by  the  judge,  that  it  was  the  dif- 
ference between  the  sum  for  which  the  rights  were  sold  and  their 
cash  value  at  the  time  of  the  sale,  was  correct.  The  plaintiff  was 
not  obliged  to  return  the  money,  or  to  repurchase  the  rights,  but 
may  recover  the  actual  damages  occasioned  to  it  by  the  want  of 
fidelity  and  diligence  of  the  defendant.  But  this  does  not  include 
dividends  paid  on  the  shares  since  the  sale,  and  there  was  error  in 
including  them  in  the  damages  assessed.  It  appears  upon  the 
report  that  the  plaintiff  is  entitled  to  recover  $1,050,  and  interest 
thereon  from   the  time  of  the  sale,   January  26,   1880.      If  it 


478  Cases  on  Agency.  [Book  IV 

remits  so  mnch  of  the  damages  as  exceeds  that  amonnt,  the  entry 
will  be  judgment  affirmed;  otherwise,  verdict  set  aside  and  a  ne^v 
trial  ordered  as  to  damages  only. 

Ordered  accordingly. 


(104  Indiana,  562.) 

EO CHESTER  vs.  LEVERING. 

f Supreme  Court  of  Indiana,  November,  1885.) 

In  this  case  there  was  a  complaint  by  John  Levering  against  Mrs. 
Madeline  Rochester,  and  a  cross-complaint  by  her  against  Levering 
seeking  to  compel  him  to  account  for  the  profits  made  by  him 
upon  the  sale  of  lands  which  he  claimed  to  have  purchased  fi'om 
her,  but  which  sale  she  repudiated.  Judgment  below  against  her, 
and  she  ai:>pealed. 

S.  P.  Baird,  J.  E.  McDonald,  J,  M.  Butler,  and  A.  L.  Mason, 
for  appellant. 

J.  R.  Coffroth,  T.  A.  Stuart,  F.  H.  Levering,  and  F.  B. 
Everett,  for  appellee. 

Mitchell,  J.  (After  stating  the  facts.)  That  an  agent  to  sell 
property,  can  not,  either  directly  or  indirectly,  become  the  pur- 
chaser from  himself,  and  that  such  sale  is  voidable  absolutely  at 
the  election  of  the  principal  or  beneficiary,  without  regard  to  its 
fairness,  are  propositions  inflexibly  established. 

The  facts  found  do  not  make  this  a  case  of  that  description. 
While  they  disclose  a  relation  of  the  closest  and  most  confidential 
character  between  principal  and  agent,  so  far  as  the  general  man- 
agement of  the  financial  and  business  affairs  of  the  principal  were 
concerned,  they  also  show  that  the  agent  had  no  power  to  sell,  and 
that  he  did  not,  in  fact,  make  the  sale.  The  agency  with  respect 
to  the  particular  tract  of  land  is  stated  in  the  following  language: 
*'  That  said  Madeline  was  desirous  of  selling  this  tract,  as  well  as 
her  other  unimproved  land,  and  requested  said  plaintiff  to  find  a 
purchaser  therefor,  which  he  tried  to  do;  *  *  *  that  while 
acting  as  the  confidential  agent  of  said  Madeline,  and  her  agent  to 
sell  said  fifteen  acre  tract,  plaintiff  proposed  to  buy  it  himself." 

Fairly   interpreted,   this  means  that   while  in    the  relation   of 
general  confidential  business  agent  to  the  appellant,  Mr.  Levering 


Chap.  II  ]  Rochester  vs.  Leverikq.  479 

was  requested  to  find  a  purchaser  for  the  land  who  would  pay  a 
fixed  price,  and  while  so  acting  as  agent  to  sell  he  proposed  to  pur- 
chase the  land  from  his  principal  and  negotiated  with  her  the 
purchase  whicli  is  now  the  subject  of  controversy.  The  case  is  one 
arising  out  of  a  transaction  between  a  confidential  agent  and  his 
principal,  who  purposely  and  intentionally  dealt  with  each  other 
concerning  a  subject  matter  involved  in  the  agency.  The  result 
of  the  negotiations  between  the  two  was,  that  the  principal  con- 
Bciously  and  knowingly  transferred  to  her  confidential  agent  the 
land  in  controversy  at  a  stipulated  price. 

"While  a  transaction  of  the  character  disclosed  is  not  necessarily 
voidable  at  the  election  of  the  principal,  a  court  of  equity,  upon 
grounds  of  public  policy,  will,  nevertheless,  subject  it  to  the  sever- 
est scrutiny.  Its  purpose  will  be  to  see  that  the  agent,  by  reason 
of  the  confidence  reposed  in  him  by  the  principal,  secures  to  him- 
self no  advantage  from  the  contract.  When  the  transaction  is 
seasonably  challenged,  a  presumption  of  its  invalidity  arises,  and 
the  agent  then  assumes  the  burden  of  making  it  afiQrmatively 
appear  that  he  dealt  fairly,  and  in  the  richest  of  faith  imparted  to 
his  principal  all  the  information  concerning  the  property  possessed 
by  him.  The  confidential  relation  and  the  transaction  having 
been  shown,  the  onus  is  upon  the  agent  to  show  that  the  bargain 
was  fair  and  equitable,  that  he  gave  all  the  advice  within  his 
knowledge  pertaining  to  the  subject  of  the  sale  and  the  value  of 
the  property,  and  that  there  was  no  suppression  or  concealment 
which  might  have  influenced  the  conduct  of  the  principal.  McCor- 
mick  vs.  Malin,  5  Blackf.  509,  522;  Cook  vs.  Berlin,  etc.  Co.  43 
Wis.  433;  Porter  vs.  Woodruff,  36  N.  J.  Eq.  174;  Young  vs. 
Evghes,  32  N.  J.  Eq.  372;  Farnam  vs.  Brooks,  9  Pick.  (Mass.) 
212;  Moore  vs.  Mandlehaum,  8  Mich.  433. 

As  applicable  to  cases  of  the  character  under  consideration,  the 
rule  is  succinctly  stated  by  a  learned  author  in  the  following  lan- 
guage: *' Passing  to  dealings  connected  with  the  principal's  inter- 
vention, in  any  contract  of  purchase  or  sale  with  the  principal,  or 
other  transaction  by  which  the  agent  obtains  a  benefit,  a  presump- 
tion arises  against  its  validity  which  the  agent  must  overcome; 
although  this  presumption  is  undoubtedly  not  so  weighty  and 
strong  as  in  the  case  of  a  trustee.  The  mere  fact  that  a  reasonable 
consideration  is  paid  and  that  no  undue  advantage  is  taken,  is  not 
of  itself  suflQcient.  Any  unfairness,  any  underhanded  dealing,  any 
use  of  knowledge  not  communicated  to  the  principal,  any  lack  of 


480  Cases  oi?  AoEircT.  [Book  IV 

the  perfect  good  faith  which  equity  requires,  renders  the  transac- 
tion voidable,  so  that  it  will  be  set  aside  at  the  option  of  the  prin- 
cipal. If,  on  the  other  hand,  the  agent  imparted  all  his  own 
knowledge  concerning  the  matter,  and  advised  his  principal  with 
candor  and  disinterestedness  as  though  he  himself  were  a  stranger 
to  the  bargjiin,  and  paid  a  fair  price,  and  the  principal  on  his  side 
acted  with  full  knowledge  of  the  subject  matter  of  the  transaction 
and  of  the  person  with  whom  he  was  dealing,  and  gave  full  and 
free  consent — if  all  these  are  affirmatively  proved,  the  presumption 
is  overcome,  and  the  transaction  is  valid/*  2  Pomeroy,  Equity 
Jurisprudence,  sec.  959.  Subject  to  the  burdens  thus  imposed,  as 
was  stated  in  Fisher's  Appeal,  34  Penn.  St.  29,  **  It  never  has  been 
supposed  that  a  principal  might  not  sell  to  his  agent,  or  the  client 
to  his  attorney;  and  that  their  titles,  thus  acquired,  would  not  be 
good  in  the  absence  of  fraud  on  their  part.**    •    •     * 

Affirmed. 


(86  MissouEi,  27,  66  Am.  Eep.  408.) 

LEACH    vs.     HANNIBAL    &    ST.     JOSEPH    HAILROAD 

COMPANY. 

(Supreme  Court  of  Missouri,  April,  1885. J 

Action  to  recover  notary's  fees.  The  opinion  states  the  case. 
The  plaintiU  had  judgment  below. 

Q.  W.  Eiisley,  for  appellant, 
H.  B.  Leach,  in  person. 

Eay,  J.  The  respondent  was  for  a  number  of  years  prior  to 
1878  in  the  appellant's  employ  as  agent  to  settle  claims  for  stock 
killed  or  injured  on  the  railroad,  and  as  assistant  for  Mr.  Ci;rr, 
who  was  the  general  attorney  of  appellant,  and  for  his  services  in 
these  behalfs,  received  a  regular  salary.  During  the  time  of  said 
employment  respondent  was  appointed  and  qualified  as  a  notary 
public,  and  as  such  took  the  acknowledgement  of  numerous  deeds, 
by  defendant,  through  its  land  commissioner,  and  also  certified  to 
affidavits  of  appeals,  and  also  to  answers  in  garnishment  made  by 
the  appellant,  when  directed  to  do  so  by  Mr.  Carr.  Plaintiff  was  dis- 
charged from  said  employment  by  defendant  in  1878,  and  thereafter 
brought  this  suit  to  recover  of  defendant  for  said  services  so  reu- 


Chap.  II]  Leach  vs.  Raileoad  Co.  481 

dered  as  said  notary,  during  his  said  employment.  The  plaintiff's 
claims  therefor  were  appropriately  declared  on  and  set  out  in  his 
petition.  There  is  no  conflict,  as  we  gather  from  the  record,  as 
to  the  actual  rendition  of  said  services,  or  that  the  rates  charged 
were  not  such  as  are  authorized  by  law  therefor. 

Defendant's  answer,  so  far  as  we  need  consider  the  same,  set  up 
said  employment  of  respondent  by  appellant  in  the  capacities  afore- 
said, and  that  the  rendition  of  said  notarial  service  sued  for  was  in 
due  course  of  said  employment,  and  included  in  his  said  com- 
pensation, which  was  duly  paid  and  received.  Defendant's  answer 
further  set  up,  by  way  of  counter-claim,  that  during  his  employ- 
ment as  its  agent,  and  as  an  assistant  attorney  at  law,  one  R.  M. 
Johnson  began  an  action  against  the  appellant,  before  a  justice  of 
the  peace,  to  recover  $400  for  damages  for  killing  a  horse  by 
defendant's  cars,  and  alleged  it  was  respondent's  duty  to  settle  said 
claim  and  suit,  if  a  legal  demand,  and  if  not,  to  use  proper  care, 
ability  and  diligence  in  the  defence  thereof;  that  respondent 
attended  the  trial  thereof  before  the  justice  of  the  peace,  and  was 
there  offered,  and  refused  a  settlement  thereof  for  the  sum  of 
$160.  Upon  a  trial  thereof  judgment  was  rendered  for  plaintiff 
therein,  and  said  cause  was  appealed  to  the  circuit  court  of  Marion 
county,  where  on  account  of  this  plaintiff's  negligence,  judgment 
was  rendered  by  default  against  this  appellant  for  the  sum  of 
$400,  whereby  appellant  claims  to  have  been  damaged  in  said  sum, 
and  asks  judgment  therefor. 

The  reply  of  plaintiff,  so  far  as  we  deem  the  same  material,  denied 
that  by  the  terms  of  his  agreement  he  agreed  to  serve  defendant  as 
an  attorney  at  law,  but  claims  and  avers  he  agreed  to  give  such 
assistance  as  he  could  in  his  capacity  as  stock  agent,  on  the  trial  of 
causes  for  injury  to  stock,  and  that  he  was  not  in  defendant's 
employ  in  any  other  capacity.  It  admits  respondent's  refusal  to 
settle  the  Johnson  claim,  and  his  defense  thereof  as  stock  agent 
before  the  justice,  but  denies  that  it  was  his  duty  to  manage  said 
cause,  or  attend  the  same  in  the  circuit  court.  The  trial  resulted 
in  a  verdict  for  plaintiff  on  his  said  account  in  the  sum  of  $G53.50, 
and  for  defendant  for  one  cent  on  his  counter-claim.  Judgment 
was  entered  in  plaintiff's  favor  for  said  sum,  and  defendant  appealed 
therefrom  to  this  court. 

The  defendant  upon  the  trial  offered  in  evidence  the  monthly 
pay-rolls  of  the  company  for  each  month  of  the  years  1873,  1874, 
31 


482  Cases  on  Agenct.  [Book  IV 

1875,  1876,  and  1877,  precisely  like  the  one  herein  set  out  for  the 

month  of  February,  1877,  exc^t  that  the  amount  of  the  monthly 
salary  raised  from  $120  to  $150  per  month,  for  the  purpose  of  show- 
ing payment  of  all  services  during  the  time  covered  by  them,  and 
to  show  that  the  plaintiff  was  acting,  during  that  time  as  assistant 
attorney.  The  court  admitted  the  pay-rolls  from  April  to  October, 
1877,  inclusive,  for  the  purpose  only  of  showing  the  capacity  in 
which  the  plaintiff  was  employed,  and  refused  to  admit  those  from 
April  to  October,  1877,  for  any  other  purpose,  and  refused  to  admit 
those  for  the  balance  of  the  year  1877,  or  for  any  of  the  other  years, 
for  any  purpose  whatever.  In  the  monthly  pay-roll  for  February, 
1877,  admit  those  for  plaintiff's  name  stands  opposite  the  number 
thirty-five,  and  he  is  designated  as  stock  agent  and  assistant  attorney 
at  $135,  for  the  month,  and  his  name  written  on  the  thirty-fifth  line 
of  said  pay-roll,  and  under  the  following  receipt: 

**  I  acknowledge  to  have  received  from  the  Hannibal  &  St. 
Joseph  railroad  company  the  amount  opposite  my  name  in  the 
following  list,  in  full  for  all  demands  for  work  done  during  regular 
and  irregular  working  hours,  in  the  service  of  said  Hannibal  &  St. 
Joseph  railroad  company  up  to  and  including  the  date  of  this  pay- 
roll.'' 

This  evidence  was  excluded  by  the  court,  as  was  also  the  follow- 
ing question  directed  to  the  plaintiff:     ''Q.  TTas  the  business  of 
taking  aflEidavits  and  acknowledgments  performed  during  the  regu- 
lar business  hours  during   the  time  you  were  employed  by  the 
defendant?"     This  action  of  the  court  was,  we  think,  erroneous. 
Whether  these  notarial  services  were  distinct  from  and  independent 
of,  and  not  embraced  in  the  plaintiff's  contract  of  service,  was,  we 
think,  a  question  of  fact  to  be  determined  under  proper  instruc- 
tions, from  a  consideration  of  all  competent  evidence  that  might 
be  offered  thereon  by  the  parties.     The  pay-rolls  or  receipts  thus 
offered  were  prima  facie  evidence  of  payment  as  therein  expressed 
for  all  services  rendered  the  defendant  during  regular  and  irregular 
hours,  and  they  were  competent  and  receivable  for  that  purpose, 
as  well  as  to  show  in  what  capacity  Leach  acted,  and  the  relation 
he  bore  to  the  company.     Prima  facie  respondent  sold  and  hired 
to  defendant  his  entire  time  for  this  salary,  fixed  and  agreed  upon 
between   them,   and   the   rendition   of  service  by  respondent  as 
notary  in  and  about  the  defendant's  business  during  the  said  time, 
did  not  make  defendant  liable   for  the  statutory  fees  therefor. 


Chap.  II J  Leach  vs.  Kailroad  Co.  483 

without  some  agreement  or  understanding  or  line  of  conduct 
between  the  parties,  showing  they  were  not  to  be  included. 
Plaintiff's  earnings  during  the  time  of  such  employment  would 
belong  to  the  employer.  Stanshury  vs.  United  IStates,  1  Ct.  of  CI. 
123;  Wood  Mast,  and  Serv.  198;  2  Whart.  Ev.  §  1365,  and  note. 

As  bearing  further  upon  this  question,  the  inquiry  made  of 
plaintiff  as  to  whether  the  aflBdavits  and  acknowledgements  were 
taken  during  the  regular  business  hours  might,  we  think,  have 
been  properly  allowed.  As  the  case  must  go  back  for  re-trial,  we 
may  add  that  we  see  no  prejudice  to  the  defendant  in  the  court's 
ruling  upon  the  counter-claim  in  the  then  state  of  evidence. 
Although  the  Johnson  claim  may  have  constituted  a  legal  liability 
against  defendant,  plaintiff's  duty  to  settle  the  same  was  not  an 
absolute  one.  He  was  not  bound  to  give  a  sound  opinion  on  that 
question,  and  in  rejecting  the  offer  plaintiff  probably  relied  upon 
the  statement  of  defendant's  witness,  who  upon  the  trial  may  have 
been  contradicted  and  disbelieved.  "We  can  see  nothing  upon 
which  to  base  an  action  of  negligence  for  a  failure  to  settle  said 
claim.  As  there  was  no  evidence  showing  defendant's  pecuniary 
damage  or  loss  by  the  defendant  in  the  Circuit  Court,  the  instruc- 
tion for  nominal  damages  was,  we  think,  correct. 

For  these  reasons  the  judgment  of  the  Court  of  Common  Pleas 
is  reversed,  and  the  cause  remanded  for  further  proceedings  in 
conformity  hereto. 

All  concur.     Judgment  reversed  and  cause  remanded. 

Note. — The  rule  that  the  master  is  entitled  to  the  servant's  earnings, 
does  not  apply  to  mere  gratuities  to  the  servant.  j3Stna  Ins.  Co.  vs. 
Church  21  Ohio  St.  492.  See,  also,  Geiger  vs.  Harris,  19  Mich.  209.  In 
an  action  for  services,  it  is  no  defense  tiiat  the  services  were  rendered  whUe 
the  claimant  was  an  employe  of  a  third  person  in  another  line  of  business, 
and  that  they  were  rendered  both  during  and  out  of  the  business  hours  of 
such  third  person.     Wallace  vs.  De  Young,  98  111.  638,  88  Am.  Rep.  108. 


184  Oases  on  Agency.  [Book  IV 

II. 

TO  OBEY  INSTEUCTI0N8.' 


(104  Massachusetts,  152,  6  Am.  Rep.  207.) 

WHITNEY    vs.    MERCHANTS'    UNION    EXPRESS    COM- 
PANY. 

CSupreme  Judicial  Court  of  Massachusetts,  March,  1870.) 

Action  to  recover  for  the  loss  of  a  draft  entrusted  to  defendant 
for  collection.  The  draft  was  drawn  upon  Plnmmer  &  Co.,  and 
plaintiffs*  instructions  to  defendant  were  to  return  the  draft  at 
once  if  not  paid.  Instead  of  doing  so,  defendant  waited  to  giv^ 
Plnmmer  &  Co.  time  to  correspond  with  plaintiff  about  it.  Other 
facts  appear  in  the  opinion. 

G.  0.  Shattuch,  for  plaintiff. 

J.  O.  Abbott  and  0.  Stevens,  for  defendant. 

Colt,  J.  Under  the  instructions  given  to  the  defendants,  at 
the  time  they  received  this  draft  for  collection,  it  was  their  duty  to 
collect  it,  or  to  return  it  at  once  to  the  plaintiff  if  not  paid.  It 
was  duly  presented  by  the  defendant's  messenger  for  payment  on 
the  14th  of  October,  and  payment  refused.  Instead  of  returning 
the  draft  at  once,  they  retained  possession  of  it  in  order  to  enable 
the  drawees  to  obtain,  by  correspondence,  some  explanation  from 
the  plaintiffs  as  to  the  amount  for  which  it  was  drawn.  Satisfac- 
tory explanations  were  received  in  due  course  of  mail,  and 
Plnmmer  &  Co.,  the  drawees,  were  ready  on  the  morning  of  the 
16th  of  the  same  month  to  pay  the  full  amount.  But  the  draft 
was  not  again  presented,  and  on  the  19th  they  failed,  and  have 
since  been  unable  to  pay. 

It  is  the  first  duty  of  an  agent,  whose  authority  is  limited,  to 
adhere  faithfully  to  his  instructions,  in  all  cases  to  which  they  can 
be  properly  applied.  If  be  exceeds  or  violates  or  neglects  them,  he 
is  responsible  for  all  losses  which  are  the  natural  consequence  of 
his  act.  And  we  are  of  opinion  that  there  is  evidence  of  neglect  in 
this  case,  upon  which  the  jury  would  have  been  warranted  in  find- 
ing a  verdict  for  the  plaintiil's. 

Tbe  defendants  would  clearly  have  avoided  all  liability  by  return- 

'  See,  also,  Hazard  V8.  Spears,  ante,  p.  182. 


Chap.  II  ]  Whitney  vs.  Express  Co,  485 

ing  the  draft  at  once,  npon  the  refusal  to  pay.  It  is  urged,  that 
the  defendants  had  done  all  they  were  bound  to  do,  when  they  had 
presented  the  draft  and  caused  the  plaintiff  to  be  notified  of  its  non- 
payment; that  the  notice  which  was  immediately  communicated  by 
the  letter  of  Plummer  &  Company,  asking  explanation,  was  equiv- 
alent to  a  return  of  the  draft;  that  this  notice  was  given  by  the  pro- 
curement or  assent  of  the  defendants,  as  early  as  they  would  be 
required  to  give  it,  if  they  had  themselves  done  it  instead  of  intrust- 
ing it  to  Plummer  &  Company;  and  that,  after  receipt  of  it,  it  was 
the  duty  of  the  plaintiffs  to  give  new  instructions,  if  they  desired 
the  draft  presented  for  payment  a  second  time. 

There  would  be  force  in  these  considerations,  if  the  letter  of 
Plummer  &  Company  was  only  a  simple  notice  of  non-payment, 
with  no  suggestion  of  further  action  in  regard  to  it.  It  expresses 
and  implies  much  more.  The  reason  for  the  refusal  to  pay  is  stated, 
and  the  plaintiffs  are  told  that  the  defendants  will  hold  the  draft 
until  they,  Plummer  &  Company,  hear  from  them.  Plainly,  if 
the  defendants  avail  themselves  of  the  letter  as  a  performance  of 
their  obligation  to  give  notice,  they  must  abide  by  the  whole  of  its 
contents.  They  make  Plummer  &  Company  their  agents  in  writ- 
ing it,  and  authorize  the  plaintiffs  to  rely  on  the  assurance  which 
it  substantially  contains,  that  upon  the  receipt  by  Plummer  & 
Company  of  their  explanation  the  draft  would  be  paid  or  returned, 
or  notice  of  its  non-payment  given. 

There  is  no  suggestion  in  it  that  the  defendants  were  awaiting 
further  instructions  from  the  plaintiffs,  or  needed  or  expected 
them.  It  clearly  implies  that  the  defendants  had  only  suspended, 
at  the  suggestion  of  Plummer  &  Company,  and  for  their  accom- 
modation, the  further  performance  of  the  duty  they  had  under- 
taken, until  an  answer  and  explanation  could  be  returned  to  Plum- 
mer &  Company.  The  plaintiffs  had  no  new  instructions  to  give, 
nor  had  the  defendants  any  right  to  expect  them.  They  trusted 
to  others,  instead  of  corresponding  themselves  with  the  plaintiffs, 
who,  in  this  matter,  are  in  no  respect  chargeable  with  neglect. 
The  loss  is  wholly  due  to  the  neglect  of  the  defendants,  and  must 
be  borne  by  them.  According  to  the  agreement  of  the  parties, 
the  entry  must  be  judgment  for  the  plaintiffs. 


486  Cases  on  Agency.  [Book  IV 

(68  New  York,  522,  23  Am  Rep.  184.) 

LAVERTY  vs.   SNETHEN. 
(Neva  York  Court  of  Appeals,  February,  1877.) 

Action  to  recover  damages  for  the  alleged  conversion  by  defend- 
ant of  a  promissory  note  belonging  to  plaintiff.  The  note  was 
made  by  one  Holly,  payable  to  plaintiff's  order,  who  indorsed 
it  and  delivered  it  to  defendant  to  procure  a  discount  thereon  for 
plaintiff. 

The  jury  returned  a  verdict  for  the  plaintiff  and  the  judgment 
entered  thereon  was  affirmed  by  the  general  term  of  the  Court 
of  Common  Pleas  of  New  York.     Defendant  appealed. 

Jas.  C.  Carter,  for  appellant. 

Samuel  Hand  and  Patterson  &  Major,  for  respondent. 

Church,  C.  J.  The  defendant  received  a  promissory  note  from 
the  plaintiff,  made  by  a  third  person  and  indorsed  by  the  plaintiff, 
and  gave  a  receipt  therefor,  stating  that  it  was  received  for  nego- 
tiation, and  the  note  to  be  returned  the  next  day,  or  the  avails 
thereof.  The  plaintiff  testified  in  substance  that  he  told  the 
defendant  not  to  let  the  note  go  out  of  his  reach  without  receiving 
the  money.  The  defendant,  after  negotiating  with  one  Foots 
about  buying  the  note,  delivered  the  note  to  him  under  the  promise 
that  he  would  get  it  discounted  and  return  the  money  to  defendant, 
and  he  took  away  the  note  for  that  purpose.  Foote  did  procure 
the  note  to  be  discounted,  but  appropriated  the  avails  to  his  own 
use. 

The  court  charged  that  if  the  jury  believed  the  evidence  of  the 
plaintiff  in  respect  to  instructing  the  defendant  not  to  part  with 
the  possession  of  the  note,  the  act  of  defendant  in  delivering  the 
note,  and  allowing  Foote  to  take  it  away,  was  a  conversion  in  law, 
and  the  plaintiff  was  entitled  to  recover.  The  exception  has  been 
criticised  as  applying  to  two  propositions,  one  of  which  was  unob- 
jectionable, and  therefore  not  available. 

Although  not  so  precise  as  is  desirable,  I  think  that  the  excep- 
tion was  intended  to  apply  to  the  projjosition  above  stated,  and 
was  sufficient. 

The  question  as  to  when  an  agent  is  liable  in  trover  for  con- 
version is  sometimes  difficult.      The  more   usual  liability  of  an 


Chap.  II  ]  Laverty  vs.  Snethbn.  '^^7 

agent  to  the  principal  is  an  action  of  assumpsit  or  what  was 
formerly  termed  an  action  on  the  case  for  neglect  or  misconduct, 
but  there  are  cases  when  trover  is  the  proper  remedy.  Conversion 
is  defined  to  be  an  unauthorized  assumption  and  exercise  of  the 
right  of  ownership  over  goods  belonging  to  another  to  the 
exclusion  of  the  owner's  rights.  A  constructive  conversion  takes 
place  when  a  person  does  such  acts  in  reference  to  the  goods  of 
another  as  amount  in  law  to  appropriation  of  the  property  to  him- 
self. Every  unauthorized  taking  of  personal  property,  and  all 
intermeddling  with  it,  beyond  the  extent  of  the  authority  con- 
ferred, in  case  a  limited  authority  has  been  given,  with  intent  so 
to  apply  and  dispose  of  it  as  to  alter  its  condition  or  interfere  with 
the  owner's  dominion,  is  a  conversion.  Bouv.  Law  Diet.,  title 
Conversion. 

Savage,  Ch.  J.,  in  Sjjencer  vs.  BlacTcman,  9  Wend.  167,  defines 
it  concisely  as  follows:  "A  conversion  seems  to  consist  in  any 
tortuous  act  by  which  the  defendant  deprives  the  plaintiff  of  his 
goods." 

In  this  case  the  plaintiff  placed  the  note  in  the  hands  of  the 
defendant  for  a  special  purpose  not  only,  but  with  restricted  authority 
(as  we  must  assume  from  the  verdict  of  the  jury),  not  to  part  with 
the  possession  of  the  note  without  receiving  the  money.  The 
delivery  to  Foote  was  unauthorized  and  wrongful,  because  contrary 
to  the  express  directions  of  the  owner.  The  plaintiff  was  entitled 
to  the  absolute  dominion  over  this  property  as  owner.  He  had  the 
right  to  part  with  so  much  of  that  dominion  as  he  jDleased.  He 
did  part  with  so  much  of  it  as  would  justify  the  defendant  in 
delivering  it  for  the  money  in  hand,  but  not  otherwise.  The  act 
of  permitting  the  note  to  go  out  of  his  possession  and  beyond  his 
reach  was  an  act  which  he  had  no  legal  right  to  do.  It  was  an 
unlawful  interference  with  the  plaintiff's  property  which  resulted  in 
loss,  and  that  interference  and  disposition  constituted,  within  the 
general  principles  referred  to,  a  conversion  and  the  authorities  I 
think  sustain  this  conclusion,  by  a  decided  weight  of  adjudication. 

A  leading  case  is  Syeds  vs.  Bay,  4  T.  K.  260,  where  it  was  held 
that  trover  would  lie  against  the  master  of  a  vessel  who  had  landed 
goods  of  the  plaintiff  contrary  to  the  plaintiff's  orders,  though  the 
plaintiff  might  have  had  them  by  sending  for  them  and  paying  the 
wharfage.  Bdtlee,  J.,  said:  **  If  one  man  who  is  intrusted  with 
the  goods  of  another  put  them  into  the  hands  of  a  third  person,  con- 
trary to  orders,  it  is  a  conversion."    This  case  has  been  repeatedly 


488  Cases  on  Agency.  [Book  IV 

cited  by  the  courts  of  this  State  as  good  law,  and  has  never  to  my 
knowledge  been  disapproved,  altliongh  it  has  been  distinguished 
from  another  class  of  cases  npon  which  the  defendant  relies,  and 
which  will  be  hereafter  noticed.  In  Spencer  vs.  Blaclcman,  9  Wend. 
167,  a  watch  was  delivered  to  the  defendant  to  have  its  value 
appraised  by  a  watchmaker.  He  put  it  into  the  possession  of  the 
watchmaker,  when  it  was  levied  upon  by  virtue  of  an  execution  note 
against  the  owner,  and  it  was  held  to  be  a  conversion.  Sayage, 
C.  J.,  said:  "  The  watch  was  intrusted  to  him  for  a  special  purpose, 
to  ascertain  its  value.  He  had  no  orders  or  leave  to  deliver  it  to 
Johnson,  the  watchmaker,  nor  any  other  person." 

So,  when  one  hires  a  horse  to  go  an  agreed  distance  and  goes 
beyond  that  distance,  he  is  liable  in  trover  for  a  conversion. 
Wheelock  vs.  Wheelwright,  5  Mass.  104.  So,  when  a  factor  in 
Buffalo  was  directed  to  sell  wheat  at  a  specified  price  on  a  particu- 
lar day,  or  ship  it  to  New  York,  and  did  not  sell  or  ship  it  that  day, 
but  sold  it  the  next  day  at  the  price  named,  held  that  in  legal 
effect  it  was  a  conversion.  Scoti  vs.  Rogers,  31  N.  Y.  C76.  See, 
also,  Addison  on  Torts,  310  and  cases  there  cited. 

The  cases  most  strongly  relied  upon  by  the  learned  counsel  for 
the  appellant  are  Dufresne  vs.  Hutchinson,  3  Taunt.  117,  and 
Sarjeant  vs.  Blunt,  16  Johns.  74,  holding  that  a  broker  or  agent 
is  not  liable  in  trover  for  selling  property  at  a  price  below  instruc- 
tions. The  distinction  in  the  two  classes  of  cases,  I  apprehend,  is 
that  in  the  latter  the  broker  or  agent  did  nothing  with  the  property 
but  what  he  was  authorized  to  do.  He  had  a  right  to  sell  and 
deliver  the  property.  He  disobeyed  instructions  as  to  price  only,  and 
was  liable  for  misconduct,  but  not  for  conversion  of  the  property, 
a  distinction  which,  in  a  practical  sense,  may  seem  technical,  but 
it  is  founded  probably  upon  the  distinction  between  an  unauthor- 
ized interference  with  the  property  itself  and  the  avails  or  terms  of 
sale.  At  all  events,  the  distinction  is  fully  recognized  and  settled 
by  authority. 

In  the  last  case,  Spencer,  J.,  distinguished  it  from  Sgeds  vs. 
Bay,  supra.  He  said:  **In  the  case  of  Sgeds  vs.  Bay,  4  T. 
E.  260,  the  captain  disobeyed  his  orders  in  delivering  the  goods. 
He  had  no  right  to  touch  them  for  the  purpose  of  delivering  them 
on  that  wharf.'* 

The  defendant  had  a  right  to  sell  the  note,  and  if  he  had  sold 
it  at  a  less  price  than  that  stipulated,  he  would  not  have  been  liable 
in  this  action,  but  he  had  no  right  to  deliver  the  note  to  Foote  to 


Chap.  II  ]  Laveett  vb.  Snethen.  489 

take  away,  any  more  than  he  had  to  pay  his  own  debt  with  it. 
Morally  there  might  be  a  difference,  bnt  in  law  both  acts  would  be 
a  conversion,  each  consisting  in  exercising  an  unauthorized 
dominion  over  the  plaintiff's  property.  Palmer  vs.  Jarmain,  2  M. 
&  W.  282,  is  plainly  distinguishable.  There,  the  agent  was  author- 
ized to  get  the  note  discounted,  which  he  did  and  appropriated  the 
avails.  Parke,  B.,  said:  *'  The  defendant  did  nothing  with  the 
bill  which  he  was  not  authorized  to  do."  So,  in  Cairnes  vs.  Bleecher, 
12  Johns.  300,  where  an  agent  was  authorized  to  deliver  goods  on 
receiving  sufficient  security,  and  delivered  the  goods  on  inadequate 
security,  it  was  held  that  trover  would  not  lie,  for  the  reason  that 
the  question  of  the  BuflEiciency  of  the  security  was  a  matter  of 
judgment. 

In  McMorris  vs.  Simpson,  21   Wend.  610,  Bronson,  J.,  lays 
down  the  general  rule  that  the  action  of  trover  "  may  be  maintained 
when  the  agent  has  wrongfully  converted  the  property  of  his  prin- 
cipal to  his  own  use,  and  the  fact  of  conversion  may  be  made 
by  showing  either  a  demand  and  refusal,  or  tliat  the  agent  has 
without  necessity  sold  or  otherwise  disposed  of  the  property  con- 
trary to  his  instructions.     When  an  agent  wrongfully  refuses  to 
surrender  the  goods  of  his  principal,  or  wholly  departs  from  his 
authority  in  disposing  of  them,  he  makes  the  property  his  own  and 
may  be  treated  as  a  tortfeasor."    The  result  of  the  authorities  is 
that  if  the  agent  parts  with  the  property,  in  a  way  or  for  a  purpose 
not     authorized,    he     is     liable    for    a     conversion,   but    if    he 
parts    with    it    in    accordance     with    his     authority,     although 
at  less    price,   or  if  he  misapplies   the  avails,  or   takes  inade- 
quate for    sufficient    security,  he    is  not  liable  for  a  conversion 
of   the   property,   but  only   in  an  action  on  the   case   for   mis- 
conduct.    It  follows  that  there  was  no  error  in  the  charge.     The 
question  of  good  faith  is  not  involved.     A  wrongful  intent  is  not 
an  essential  element  of  the  conversion.     It  is  sufficient  if  the  owner 
has  been  deprived  of  his  property  by  the  act  of  another  assuming 
an  unauthorized  dominion  and  control  over  it.     31  N.  Y.  490.     It 
is  also  insisted  that  the  parol  evidence  of  instructions  not  to  part 
with  the  note  was  incompetent  to  vary  the  terms  of  the  contract 
contained  in  the  receipt. 

This  evidence  was  not  objected  to  not  only,  but  the  point  was  not 
taken  in  any  manner.  The  attention  of  the  court  was  not  called  to 
it,  and  the  court  made  no  decision  in  respect  to  it.  Under  these 
circumstances  it  must  be  deemed  to  have  been  waived^  and  is  not 


490  Cases  on  Aqenct.  [Book  IV 

available  upon  appeal.  Bnt  if  an  exception  had  been  taken  I  am  in- 
clined to  the  opinion  that  the  testimony  was  competent.  It  is  not 
claimed  that  it  varies  that  part  of  the  receipt  which  contains  an 
agreement  to  return  the  note  or  the  money  the  next  day,  but  that 
it  varies  the  clause  stating  that  the  note  was  received  for  negotia- 
tion. This  expresses  the  purpose  of  receiving  the  note,  and  if 
deemed  a  contract,  can  it  be  said  that  a  parol  mandate  not  to  part 
with  possession  of  the  note  before  sale  and  receipt  of  money  is 
inconsistent  with  it? 

There  is  no  rule  of  law  which  gives  an  agent  the  right  thus  to 
part  with  a  promissory  note  under  the  mere  authority  to  negotiate. 
The  instructions  were  consistent  with  the  purpose  expressed, 
although  if  they  had  not  been  given,  a  wider  field  of  inquiry  might 
have  been  opened.  A  promissory  note  passes  from  hand  to  hand, 
and  a  lona  fide  holder  is  protected  in  his  title,  and  it  might  well 
be  claimed  that  an  authority  to  sell  would  not  ordinarily  jastify  a 
delivery  to  a  third  person  without  a  sale.  Without  definitely 
passing  upon  this  question,  we  think  that  the  question  should  have 
been  in  some  form  presented  at  the  trial.  In  a  moral  sense  the 
defendant  may  have  acted  in  good  faith,  and  hence  the  judgment 
may  operate  harshly  upon  him,  but  the  fact  found  by  the  jury 
renders  him  liable  in  this  action. 

The  judgment  must  be  affirmed. 

All  concur.  Judgment  affirmed. 


(4  Louisiana,  26,  23  Am.  Deo.  470.) 

PASSANO  vs.  ACOSTA. 

(Supreme  Court  of  Louisiana,  May,  18S9.) 

Action  for  damages  for  disobedience  of  instructions  as  to  collec- 
tion of  a  note.     The  facts  appear  in  the  opinion. 

Cannon,  for  the  appellant. 
Seghers,  for  the  appellee. 

By  Court,  Pouter,  J.  The  petition  states  that  the  plaintiff 
placed  in  the  hands  of  the  defendant  a  note  for  collection,  executed 
by  one  Francis  Gaggino,  and  that  the  defendant,  though  often 
requested,  has  refused  to  return  the  note,  or  pay  its  amount. 


Ohap.  II]      •  Passano  vs.  Acosta.  -491 

The  answer  admits  the  agency,  but  affirms  that  the  defendant  has 
handed  over  to  the  plaintiff  a  note  of  the  said  Gaggino,  payable  to 
the  defendant,  not  yet  due,  and  which  note  the  defendant  had 
received  in  payment  of  that  mentioned  in  the  petition,  in  pursu- 
ance of  the  power  vested  in  him  by  the  plaintiff.  There  was  judg- 
ment in  the  court  of  the  first  instance  for  the  plaintiff,  and  the 
defendant  appealed. 

The  cause  turns  principally  on  the  question  whether  the  plaintiff 
conferred  power  on  the  defendant  to  novate  the  note,  or,  if  he  did 
not,  whether  he  had  ratified  the  act  of  his  agent.  The  written 
power  produced  does  not  confer  the  authority  which  the  defendant 
contends  he  had,  and  the  parol  evidence  fails  to  establish  it.  The 
plaintiff  has  not  relied  alone  on  the  want  of  power  which  results 
from  the  failure  of  the  defendant  to  show  it;  he  has  proved  his 
directions  were  not  complied  with,  the  authority  to  novate  being 
accompanied  with  the  condition  of  the  maker  giving  security.  The 
note  here  was  taken  in  favor  of  the  defendant,  and  has  not  been 
endorsed  by  him. 

There  is  not  sufficient  evidence  to  authorize  us  to  say  the  plaint- 
iff ratified  the  act  of  his  agent.  The  latter  was  charged  with  the 
care  and  management  of  a  store  in  which  the  former  was  a  partner, 
and  this  note  was  found  among  the  books  which  the  defendant 
left  when  his  agency  terminated.  It  is  proved  the  plaintiff  com- 
plained of  the  act  of  the  defendant  and  that  he  told  him  he  could 
not  lose  the  whole  amount  of  the  note. 

The  defense  which  is  presented  by  the  defendant,  of  the  man- 
date being  gratuitous,  and  of  his  act  being,  under  all  the  circum- 
stances, a  sound  exercise  of  discretion,  cannot  avail  him;  for,  under 
the  evidence,  discretion  was  not  conferred  on  him  to  the  extent 
now  claimed.  He  was  directed  not  to  renew  the  note  unless  the 
maker  gave  security. 

It  is  therefore  ordered,  adjudged,,  and  decreed,  that  the  judgment 
of  the  diatrict  court  be  affirmed,  with  costs. 


492  Cases  ok  Aqenot.  [Book  IV 

(26  South  Caeolina,  611.) 

NIXON  vs.  BOGIN. 

(Supreme  Court  of  South  Carolina,  April,  18S7) 

Plaintiff  drew  drafts,  with  bills  of  lading  attached,  on  one  Pool, 
and  sent  them  for  collection  to  defendant,  who  was  neither  an 
attorney  at  law  nor  a  collecting  agent.  The  drafts  called  for  the 
amounts  stated  **  with  exchange,  on  New  York  and  collection 
charges."  Defendant  surrendered  the  drafts  to  Pool  on  receiving 
from  him  drafts  on  New  York  and  Charleston  for  the  amounts 
thereof.  New  York  exchange  in  full  not  being  obtainable.  Defend- 
ant forwarded  these  drafts  to  plaintiff  and  made  no  charge.  One 
of  the  Charleston  drafts  was  not  paid,  and  this  action  was  to  recover 
the  amount  thereof  from  the  defendant.  The  verdict  was  for 
defendant,  and  plaintiff  appealed. 

Moises  <&  Lee,  for  appellant. 

Blanding  <&  Blanding,  contra. 

McGowAK,  J.  Held  (The  opinion  in  full  not  being  reported  in 
the  official  reports)  1.  If  one  not  in  business  as  a  collecting  agent, 
or  holding  himself  out  as  such,  is  requested  by  a  friend  to  collect  a 
particular  debt  for  him,  and  he,  being  willing  to  oblige,  under- 
takes to  do  so  without  compensation,  he  is  certainly  not  liable  for 
loss  without  proof  of  his  negligence. 

2.  If  exchange  on  New  York,  as  required  by  the  draft,  could  not 
be  had,  defendant  did  not  render  himself  personally  liable  if  he  did 
the  best  he  could  for  the  drawers. 

3.  Under  the  circumstances,  plaintiffs  could  not  exact  from 
defendant  more  than  an  honest  effort  to  save  them  according  to 
his  capacity.  Affirmed. 

Note— See  also  Williama  v«.  Higgins,  80  Md.  404 


CLap.  II  j  Page  vs.  "Wells.  493 

III. 

HOT  TO   BB   NEQLIGBirr.' 


(37  Michigan,  415.) 

PAGE  vs.   WELLa 

f Supreme  Court  of  Michigan,  October,  1S77.J 

The  defendant,  Page,  was  engaged  in  the  business  of  looking  up 
desirable  parcels  of  public  lands,  on  which  timber  was  standing,  and 
of  furnishing  information  of  such  parcels  to  persons  desiring  to 
locate  such  lands,  upon  their  paying  him  for  the  information.  On 
one  occasion  when  he  was  going  into  the  woods  for  thia  purpose, 
the  plaintiff.  Wells,  said  to  him  that  if  he  would  look  him  up  some 
good  pine  lands,  he  would  pay  him  for  it.  Page  agreed  to  do  this, 
and  afterwards  furnished  to  Wells  the  descriptions  of  certain  par- 
cels which  he  said  were  good  pine  lands,  and  Wells  bought  the 
lands  relying  upon  this  rejDresentation.  The  lands  proved  not  to  be 
as  good  as  represented,  and  Wells  brought  this  action  against  Page 
to  recover  damages,  based  upon  the  theory  that  Page  had  impliedly 
warranted  his  descriptions  to  be  correct.  He  recovered  in  the  court 
below,  and  Piige  brings  error. 

Miichel  &  Pratt,  for  plaintiff  in  error. 

A.  B.  Morse,  for  defendant  in  error. 

CooLEY,  C.  J.  (After  stating  the  facts.)  The  plaintiff  regards 
the  transaction  as  in  the  nature  of  a  sale  of  a  chattel,  and  insists 
that  it  is  to  be  governed  by  the  rules  regarding  the  sale  of  person- 
alty. The  argument  in  substance  is  that  defendant  had  a  prop- 
erty in  his  superior  information  respecting  the  lands  and  his  skill 
in  judging  of  their  value;  that  he  embodied  these  in  the  descrip- 
tions which  he  sold,  and  that  he  might  and  did  warrant  the  truth 
of  these — in  which  their  value  consisted — as  he  might  warrant  the 
soundness  of  a  horse  or  the  validity  of  a  title.  This  we  think  is  a 
fair  stiitement  of  the  plaintiff's  position,  though  it  is  stated  in  our 
own  language  and  with  brevity. 

Had  it  appeared  that  the  defendant  was  possessed  of  thia  infor- 
mation, and  had  made  up  his  descriptions  previous  to  the  bargain 
between    these   parties,   and   that  under   such   circumstances    he 

'  See  also  Leach  vs.  Hannibal  cfc  St.  Joseph  R.  R.  Co.,  ante,  p.  480-. 


494  Cases  on  Agency.  [Book  IV 

assumed  to  sell  his  special  information,  the  case  would  be  so  far 
different  from  the  present  that  possibly  different  principles  might 
apply.  It  might  then  be  argned  with  some  force  that  the  case 
resembled  the  sale  of  a  valuable  secret,  and  that  the  rules  governing 
the  sales  of  personalty  were  applicable.  But  this  was  no  such 
case.  Here  the  arrangement  was  for  the  future  acqusition  by  the 
defendant  of  information  for  the  plaintiff's  benefit,  and  for  the 
report  of  this  to  the  plaintiff.  It  is  impossible,  as  we  think,  to 
treat  it  as  anything  but  an  employment.  It  was  no  more  a  sale  of 
descriptions  than  is  it  a  sale  of  opinions  when  a  law3^er  is  employed 
to  examine  a  case  and  report  his  views,  or  a  physician  to  diagnose 
a  case  of  disease.  In  one  sense  there  is  a  sale  in  all  such  cases,  but 
the  law  treats  it  as  an  employment  and  the  rendering  of  services 
in  pursuance  thereof. 

Nor  in  any  such  case  can  there  be  any  implied  warranty  of  the 
absolute  truth  of  the  description  given.  Whoever  bargains  to 
render  services  for  another  undertakes  for  good  faith  and  integrity, 
but  he  does  not  agree  that  he  will  commit  no  errors.  For  negli- 
gence, bad  faith  or  dishonesty  he  would  be  liable  to  his  employer; 
but  if  he  is  guilty  of  neither  of  these,  the  master  or  employer  must 
submit  to  such  incidental  losses  as  may  occur  in  the  course  of  the 
employment  because  these  are  incident  to  all  avocations,  and  no 
one,  by  any  implication  of  law,  ever  undertakes  to  protect 
another  against  them.  A  positive  affirmation  of  the  quality  of 
lands  as  of  one's  personal  knowledge  when  he  has  no  knowledge  on 
the  subject,  whereby  his  employer  is  misled  and  injured,  should 
certainly  render  the  person  making  it  liable,  either  on  the  ground 
of  bad  faith  or  of  negligence;  but  it  could  not  be  treated  as  a  war- 
ranty of  the  quality  of  the  information  sold. 

(Omitting  a  consideration  of  the  measure  of  damages.) 

Judgment  reversed. 


Chap.  II]  Johnson  vb.  Martin.  495 

(11  Louisiana  Annual,  27,  66  Am.  Deo.  193.) 

JOHNSON  vs.  MARTIN. 

(Supreme  Court  of  Louisiana,  February,  1856.) 

Action  to  hold  defendant  responsible  for  money  sent  by  mail 
addressed  to  him,  by  plaintiff  who  was  defendant's  principal.  The 
money  was  stolen  by  a  former  employe  of  defendant  whom  he  had 
discharged  for  dishonesty.  PlaiutiH  contended  that  defendant  was 
negligent  in  not  anticipating  this,  and  in  not  directing  the  post- 
master not  to  deliver  letters  to  such  former  employe.  Judgment 
below  for  defendant. 

Bonford,  for  appellant. 

H.  <&  J.  A.  Gaiiher,  for  defendant. 

Lea,  J.  (After  holding  that  the  money  had  not  yet  been 
delivered  to  defendant.)  The  next  question  to  be  determined  is 
whether  the  defendant  has  been  guilty  of  neglect.  An  agent  may 
properly  be  held  responsible  for  a  neglect  to  provide  against  the 
risks  or  perils  to  which  property  intrusted  to  his  care  may,  in  the 
ordinary  course  of  business,  be  exposed,  but  he  cannot  be  held 
liable  for  not  anticipating  a  danger  altogether  out  of  the  ordi- 
nary course  of  business  or  of  natural  events.  The  plaintiff  under- 
took to  send  a  certain  sum  of  money  to  the  defendant;  until  it 
is  received,  the  latter  cannot  be  held  accountable  for  it.  At  the 
time  the  robbery  took  place  it  was  no  more  under  the  defendant's 
control  than  that  of  the  plaintiff;  and  though  we  are  not  pre- 
pared to  say  that,  under  the  peculiar  circumstances  of  this  case, 
as  disclosed  by  the  evidence,  the  plaintiff  himself  was  guilty  of  neg- 
lect, yet  nothing  in  the  record  justifies  the  assumption  that  the 
defendant  was  bound  to  protect  the  plaintiff  against  acts  of  fraud 
or  violence  which  might  be  perpetrated  upon  the  postoffice  by  one 
who  was  not  in  his  employ  or  under  his  control.  We  think  the 
the  plaintiff  is  not  entitled  to  claim  from  the  defendant  a  reim- 
bursement of  the  money  of  which  he  has  been  robbed  by  a  third 
person,  the  act  by  which  the  loss  was  occasioned  not  being  one 
which,  under  the  circumstances,  the  defendant  could  reasonably 

have  anticipated. 

Affirmed. 


496  Oases  on  Agenct,  [Book  IV 

IV. 

TO   ACCOUNT  FOR   MONET   AND   PEOPEETY. 


(25  Arkansas,  462.) 

JETT  vs.  HEMPSTEAD. 

(Supreme  Court  of  Arkansas,  June,  1869.) 

Action   to  recover  money  collected  by  an  attorney  or  agent. 
Judgment  for  plaintiff  below. 

Gallagher  &  Newton,  for  appellant. 

Fay  Hempstead  and  Garland  &  Nash,  for  appellee. 

WiLsniRE,  J.  (After  stating  the  facts.)  This  court  have  here- 
tofore held  that  an  action  cannot  be  sustained  against  an  attorney 
at  law,  and  the  same  rule  would  apply  to  an  agent  for  money  col- 
lected by  him  for  his  clients,  until  after  a  special  demand  has 
been  made  by  the  client,  or  some  one  duly  authorized  by  him 
him  to  make  the  demand,  and  a  refusal  to  pay  over  or  remit,  after 
instructions.  Cummins  vs.  McLain,  2  Ark.  412;  Sevier  vs.  Holli- 
daij,  Id.  612;  ralmer  vs.  Ashley,  3  Ark.  75;  Taylor  vs.  Spears,  6 
Ark.  381,  44  Am.  Dec.  619,  and  8  Ark.  434;  Warner  vs.  Bridges, 
6  Ark.  385.  This  doctrine  seems  to  be  universally  held  by  all  the 
courts  of  this  country.  But  it  must  be  borne  in  mind  that  it  is  in 
cases  where  the  attorney  has  faithfully  performed  his  duty,  by 
giving  his  client  timely  notice  of  his  action,  etc. 

It  is  the  duty  of  an  attorney  or  agent,  who  has  collected  money 
for  or  on  account  of  his  client  or  principal,  to  give  notice  within 
a  reasonable  time  of  the  fact.  Story  on  Agency,  sec,  208.  When 
the  principal  has  received  such  notice,  he  is  bound  to  make 
demand  of  it  within  a  reasonable  time,  and  if  he  omits  to  do  so,  he 
puts  the  statute  in  motion,  and  when  he  suffers  the  time  which  it 
limits  to  expire,  without  bringing  suit,  is  concluded  by  his  laches. 
But  where  an  attorney  or  agent  has  collected  money,  and  neg- 
lects to  advise  his  client  or  principal  of  the  fact,  although 
his  client  or  principal  might  maintain  suit  against  him  with- 
out demand,  on  the  principle  of  his  bad  faith,  the  statute  of 
limitations  will  not  commence  to  run  until  the  client  or  princi- 
pal has  notice  by  some  means  that  his  attorney  or  agent  has  col- 
lected the  money,  unless  the  attorney  or  agent  shows  affirmatively. 


Ohap.  II]  Jett  vs.  Hempstead.  497 

by  satisfactory  evidence,  tliat  his  client  or  principal  could,  by  the 
exercise  of  ordinary  diligence,  have  known  that  the  money  had 
been  collected,  and  was  in  the  hands  of  the  attorney  or  agent. 
And  this,  we  think,  is  so,  because  the  attorney  or  agent,  by  con- 
cealing the  fact  of  collection,  commits  a  fraud  upon  his  client  or 
principal,  and  in  this  view  of  the  case  we  are  supported  by  the 
case  of  Riddle  vs.  Murphy,  7  S.  &  R.  (Pa.)  235. 

In  the  case  of  McDonald  vs.  Potter,  8  Barr,  (Pa.)  189,  the  court 
said:  **  The  principle  ruled  in  the  case  of  the  Ilarrishurg  Bank  vs. 
Forster,  8  Watts.  16,  applies  here.  As  in  that  case,  an  attorney  stands 
in  a  fiduciary  character,  and,  before  he  can  be  permitted  to  avail 
himself  of  the  defense,  he  must  prove  that  he  performed  his  duty, 
and  his  omission  to  do  so  amounts  to  such  concealment  of  the 
state  of  the  business  as  in  contemplation  of  law  is  such  a  fraud  as  to 
deprive  him  of  the  protection  of  the  statute,  and  makes  it  necessary 
to  prove  payment  of  the  debt  as  in  other  cases."  The  same  prin- 
ciple is  held  in  Jennitigs  vs.  McConnel,  17  111.,  150.     ♦    *    * 

Reversed, 


(46  WiscoNSiif,  481,  32  Am.  Eep.  731.) 

KIEWERT  vs.  RINDSKOPF. 

fSupreme  Court  of  Wisconsin,  January,  1S79.J 

Plaintiff's  brother  was  under  indictment.  Defendant  informed 
plaintiff  that  for  $3,000,  one  Wight,  an  attorney,  would  bring  such 
influence  to  bear  upon  the  government  officers  as  to  secure  a  miti- 
gation of  the  penalty.  Plaintiff  gave  the  amount  to  defendant  to 
be  paid  to  Wight  for  the  purpose  stated.  Defendant  paid  Wight 
only  $1,000  and  kept  the  balance  himself.  This  action  was  to 
recover  the  $2,000  judgment  below  for  defendant. 

JenktNS,  Elliott  (&  Winkler,  and  D.  S.  Weggtox  appellant, 
Cottrell,  Gary  &  Hanson,  for  respondent. 

Okton,  J.     (After  disposing  of  two  other  points). 

III.  If  it  is  found  from  the  evidence  that  the  agreement  was, 
thai  Wight  should  render  such  services  so  claimed  to  be  improper 
and  ngainst  public  policy,  for  the  sum  of  three  thousand  dollars, 
32 


498  Cases  on  Agency.  [Book  IV 

and  the  defendant  obtained  the  same  from  the  plaintiff  for  the 
purpose  of  such  pa3'ment,  but  actually  paid  "Wight  only  one  thou- 
sand dollars,  and  converted  the  other  two  thousand  dollars  to  his 
own  use,  even  then  the  plaintiff  may  recover  the  money  so  mis- 
applied and  converted,  and  the  defendant  cannot  defend  on  the 
ground  that  the  contract  for  such  services  was  illegal  or  against 
public  policy.  In  respect  to  such  a  transaction,  the  defendant  was 
the  agent  of  the  plaintiff,  and  received  the  money  of  the  plaintiff 
with  specific  directions  as  to  its  application  and  payment  as  such, 
and  cannot  be  allowed  to  say,  in  defense  of  an  action  to  recover 
the  moneys  so  misapplied  and  converted,  in  respect  to  the  con- 
tract in  pursuance  of  which,  or  on  account  of  which,  he  received 
it,  contra  lonos  mores,  to  exculpate  himself  from  his  admitted 
fraud  and  breach  of  trust. 

The  maxim.  In  pari  delicto  melior  est  conditio  possidentis, 
has  application  only  as  between  the  immediate  parties  to  an  illegal 
contract,  and  does  not  govern  where  the  action  is  brought  by  one 
of  such  parties  to  recover  money  received  by  a  third  party  in  respect 
of  his  illegal  contract.  Broom's  Legal  Maxims,  §§  567-8;  Tenant 
vs.  Elliott,  1  B.  &  P.  3;  Farmer  vs.  Russell,  Id.  296;  Bousjicld 
vs.  Wilson,  16  M.  &  W.  185.  Within  this  principle  it  has  been 
held  that  when  moneys  of  the  principal  are  in  the  hands  of  an 
agent,  as  the  proceeds  of  property  sold,  with  directions  of  the  prin- 
cipal to  pay  it  out  for  an  illegal  purpose,  and  the  agent  pays  out  for 
such  purpose  only  part  of  such  moneys,  and  converts  the  balance 
to  his  own  use,  the  principal  may  recover  of  the  agent  such  unex- 
pended balance  (Bone  vs.  Echless,  19  L.  J.  Exch.  438);  and  that 
money  bet  upon  an  election,  and  deposited  with  a  stakeholder,  who, 
after  the  event  of  the  election  is  known,  has  notice  not  to  pay  it 
over  to  the  winner,  may  be  recovered  back  by  the  loser.  Has'dow 
vs.  Jackson,  8  B.  &  C.  221;  McAllister  vs.  Hoffman,  16  S.  &  R.  147, 
16  Am.  Dec.  556.  *'  While  the  law  will  not  enforce  an  illegal  con- 
tract, yet  if  a  servant  or  agent  of  another  has,  in  the  prosecution  of 
an  illegal  enterprise  for  his  master,  received  money  or  other  prop- 
erty belonging  to  his  master,  he  is  bound  to  turn  it  over  to  him,  and 
cannot  shield  himself  from  liability  therefor  upon  the  ground  of 
the  illegality  of  the  original  transaction."  Wood  on  Master  and 
Servant,  §  302;  Anderson  vs.  Mojicrieff,  3  Desauss.  126;  Brooks  vs. 
Martin,  2  Wall.  79;  Gilliam,  Ex'r  vs.  Brown,  43  Miss.  641. 

While  the  money  remains  in  the  hands  of  the  agent,  notwith- 


Chap.  II]  KlEWEBT  vs.    ElNDSKOPP.  499 

standing  such  agent  may  have  received  it  for  the  purpose  of  using 
it  or  paying  it  out  in  pursuance  of  an  illegal  contract  between  hia 
principal  and  a  third  person,  and  has  been  directed  to  so  use  or 
pay  it,  there  appears  to  be  no  reason  for  making  an  exception  to 
the  law  governing  the  relation  between  principal  and  agent,  for 
such  a  case,  which  would  prevent  the  principal  from  countermand- 
ing such  directions,  and  revoking  the  authority  of  the  agent,  and 
recovering  the  money.  The  principle  recognized  by  the  above 
authorities  has  been  sanctioned  by  the  court  in  Douville  vs.  Merrick, 
25  Wis.  688,  and  need  not  be  further  considered,  except  to  affirm 
it  in  this  case. 

IV.  As  to  the  two  thousand  dollars  never  paid  out  in  pursu- 
ance of  an  agreement  with  Wright,  however  illegal  that  agreement 
may  have  been,  and  to  the  extent  of  such  non-payment,  the  con- 
tract remains  in  fieri  and  executory,  and  to  that  extent  may  be 
rescinded,  and  the  money  so  remaining  in  the  hands  of  the  defend- 
ant may  be  recovered.  The  law  will  not  lend  its  aid  to  enforce  an 
illegal  contract  while  it  remains  executor}'^,  or  disturb  it  after  it  is 
fully  executed  (2  Chitty  on  Cont.  971;  Miller  vs.  Larson,  19  Wis. 
463);  but  it  will  in  all  cases  favor  its  rescission  and  abandonment 
before  its  execution.  2  Pars,  on  Cent.,  §  476.  **  If  an  illegal 
contract  be  executory,  and  if  the  plaintiff  dissent  from  or  disavow 
the  contract  before  its  completion,  he  may,  on  disaffirmance, 
recover  back  money  while  m  tranntu  to  the  other  contracting 
party,  there  being  in  the  case  a  locus  poenientiae,  and  the  delictum 
being  incomplete."  Edgar  vs.  Foiuler,  3  East,  225;  Vischer  vs. 
Yates,  11  Johns.  30;  2  Chitty  on  Cont.  918.       ♦       *       * 

Eeversed. 


V. 

TO   GIVE   NOTICE   TO    PRINCIPAL. 


(4  Watts  &  Sergeant,  305.) 

DEVALL  vs.  BURBRIDGE. 

(^Supreme  Court  of  Pennsylvania,  September,  IS^S.) 

Action  on  the  case  for  negligence.      Defendant  as  agent  was 
operating  a  steamboat  owned  by  plaintiff  and  others,  and  during 


500  Cases  oit  Agekct.  [Book  IV 

the  time  she  was  seized  hy  creditors  and  sold  at  a  gross  sacrifice. 
Defendant  did  not  apprise  plaintiff  of  this  seizure.  Judgment 
below  for  defendant,  under  direction  of  the  court. 

Deford,  for  plaintiff  in  error. 
Waugh,  contra. 

Gibson,  0.  J.  (After  stating  the  facts.)  It  is  an  agent's 
imperative  duty  to  give  his  principal  timely  notice  of  every  fact  or 
circumstance  which  may  make  it  necessary  for  him  to  take  meas- 
ures for  his  security  (Paley,'38;  Beawes,  39);  and  had  notice  been 
given  in  this  instance,  it  is  not  to  be  credited  that  the  owners,  or 
the  plaintiff  singly,  would  have  suffered  a  boat  which  cost  $8,000 
to  be  sacrificed  for  less  than  the  twentieth  part  of  the  sum. 

The  case  is  too  glaring  to  admit  of  doubt.  But  even  if  there 
had  been  a  doubt,  it  ought  to  have  been  submitted  to  the  jury, 
with  a  direction  to  find  for  the  defendant  only  on  being  convinced 
that  notice  would  have  been  unavailing.  It  was  not  his  business 
to  judge  for  others,  and  by  omitting  to  apprise  the  plaintiff  of 
the  crisis,  he  took  on  himself  all  but  the  unavoidable  losses  which 
were  incident  to  it.  Nor  is  his  neglect  of  his  agency  to  be  excused 
because  it  had  become  troublesome.  He  had  voluntarily  accepted 
it,  if  he  had  not  solicited  it,  and  if,  to  use  his  own  phrase,  he  did 
not  want  to  be  bothered  with  it,  his  course  was  to  settle  his 
accounts  and  resign  it — not  to  abandon  it.  Such  is  the  rule  of  the 
common  law,  and,  for  breaking  it,  the  defendant  is  chargeable  with 
a  dereliction  of  duty.       »      *      ♦  Keversed. 

Note — Agent  must  give  principal  timely  notice  of  all  facts  coming  to  his 
knowledge  which  it  is  essential  that  the  principal  should  know  in  order  to 
protect  or  preserve  his  interests:  Arrott  vs.  Brown,  6  Whart.  (Pa.)  9; 
Harvey  vs.  Turner,  4  Rawle,  (Pa.)  223;  Callander  v».  Oelricli^,  5  Biug.  N. 
C.  58. 


Chap.  Ill  ]  KiiOEQEB  vs.  PiTOAiaN.  601 


CHAPTER   III. 

DUTIES  AND  LIABILITIES  OF  AGENT  TO  THIRD  PERSONS. 


I. 

IN  CONTRACT. 


(101  Pennsylvania  State,  311,  47  Am.  Rep.  718.) 

KROEGER  vs.  PITOAIRN. 

(Supreme  Court  of  Pennsylvania.  November,  1882.J 

Pitcairn  was  a  fire  insurance  agent  and  had  written  a  policy  for 
Kroeger.  Kroeger  kept  petroleum  on  his  premises  which  was 
forbidden  by  the  terms  of  the  policy,  unless  written  consent  was 
indorsed  thereon.  Kroeger  called  Pitcairn's  attention  to  this 
clause  and  was  assured  by  the  latter  that  no  written  indorsement 
was  required  where  the  amount  kept  was  so  small  as  that  which 
Kroeger  carried  in  stock.  Kroeger  therefore  accepted  the  policy 
without  the  indorsement.  A  fire  destroyed  his  stock  and  in  an 
action  against  the  insurance  company,  Kroeger  was  defeated 
because  he  had  kept  this  petroleleum  without  the  written  consent. 
He  brought  this  action  against  Pitcairn  to  recover  damages  for  the 
misrepresentation.     Judgment  for  defendant  below. 

Dahell  and  Hampton,  for  plaintiff  in  error. 

Schoyer  and  MoGill,  for  defendant  in  error. 

Sterrett,  J.  The  subject  of  complaint,  in  both  specifications 
of  error,  is  the  entry  of  judgment  for  defendant  non  obstante 
veredicto.  It  is  contended  that  upon  the  facts  established  by  the 
verdict,  judgment  should  have  been  entered  thereon  in  favor  of 
plaintiff.  The  jury  were  instructed  to  return  a  verdict  for  the 
amount  claimed  by  him,  if  they  were  satisfied  the  allegations  of 
fact  contained  in  the  point  presented  by  him  were  true.  In  view 
of  this,  the  finding  in  his  favor  necessarily  implies  a  verification  of 
the  several  matters  specified  in  plaintiff's  point,  and  hence  it  must 


502  Cases  on  Agency.  [Book  IV 

now  be  regarded  as  containing  a  truthful  recital  of  the  circum- 
Btances  connected  with  the  delivery  of  the  policy  and  payment  of 
the  premium. 

The  transaction,  as  therein  detailed,  clearly  amounted  to  a 
mutual  understanding  or  agreement  between  the  parties  that  the 
stock  of  merchandise  mentioned  in  the  policy  should  include  one 
barrel  of  carbon  oil;  in  other  words,  that  the  plaintiff  should  have 
the  privilege  of  keeping  that  quantity  of  oil  in  connection  with 
and  as  a  part  of  the  stock  insured,  without  thereby  invalidating 
his  policy.  It  is  impossible  to  regard  the  transaction  in  any  other 
light.  The  jury  found  that  plaintiff  "  took  the  policy  upon  the 
faith "  of  the  representations  made  by  defendant.  These  repre- 
sentations were  not  merely  expressions  of  opinion  as  to  the  meaning 
of  the  policy.  On  the  contrary,  the  defendant  acting  as  its  agent 
and  assuming  authority  to  speak  for  the  insurance  company, 
asserted  without  any  qualification  that  when  carbon  oil  was  kept 
as  plaintiff  was  in  the  habit  of  keeping  it — a  single  barrel  at  a 
time — it  was  unnecessary  to  mention  the  fact  in  the  policy,  or 
otherwise  obtain  the  consent  of  the  company;  that  no  notice  is  ever 
taken  of  it  unless  "  it  is  kept  in  large  quantity — say  several  hundred 
barrels.  In  that  case,  when  it  is  wholesale,  it  should  be  mentioned; 
but  as  long  as  it  is  kept,  not  more  than  a  barrel  in  the  store  at  a  time, 
it  is  considered  as  general  merchandise  and  is  not  taken  notice  of 
in  any  other  way."  Such  was  the  language  employed  by  defend- 
ant, evidently  for  the  purpose  of  dispelling  any  doubt  that  existed 
in  the  mind  of  the  plaintiff  and  inducing  him  to  accept  the  policy 
and  pay  the  premium;  and  to  that  end  at  least  it  was  successful. 
"What  was  said  and  done  by  defendant,  in  the  course  of  a  trans- 
action, amounted  to  more  than  a  positive  assurance  that  the 
accepted  meaning  of  the  policy  was  as  represented  by  him.  In 
effect,  if  not  in  substance,  his  declarations  were  tantamount  to  a 
proposition,  on  behalf  of  the  company  he  assumed  to  represent, 
that  if  the  insurance  was  effected  it  should  be  with  the  understand- 
ing that  a  barrel  of  carbon  oil  was  included  in  and  formed  part  of 
the  insured  stock  of  merchandise,  without  being  specially  men- 
tioned in  the  policy. 

The  plaintiff  doubtless  so  regarded  his  declarations,  and  relying 
thereon,  as  the  jury  has  found,  accepted  the  policy  on  the  terms 
proposed,  and  thus  concluded,  as  he  believed,  a  valid  contract  of 
insurance,  authorizing  him  to  keep  in  stock,  as  he  had  theretofore 
done,  a  small  quantity  of  carbon  oil.     It  was  not  until  after  the 


Chap.  Ill]  Keoegeb  vs.  Pitcairn.  503 

property  was  destroyed  that  he  was  undeceived.  He  then  discov- 
ered, that  in  consequence  of  defendant  having  exceeded  his  author- 
ity, he  was  without  remedy  against  the  company.  Has  he  any 
remedy  against  the  defendant,  by  whose  unauthorized  act  he  was 
placed  in  this  false  position?  We  think  he  has.  If  the  president 
or  any  one  duly  authorized  to  represent  the  company  had  acted  as 
defendant  did,  there  could  be  no  doubt  as  to  its  liability.  Why 
should  not  the  defendant  be  personally  responsible,  in  like  manner, 
for  the  consequences,  if  he,  assuming  to  act  for  the  company,  over- 
stepped the  boundary  of  his  authority  and  thereby  misled  the 
plaintiff  to  his  injury,  whether  intentionally  or  not. 

The  only  diilerence  is  that  in  the  latter  the  authority  is  self- 
assumed,  while  in  the  former  it  is  actual,  but  that  cannot  be  urged 
as  a  sufficient  reason  why  plaintiff,  who  is  blameless  in  both  cases, 
should  bear  the  loss  in  one  and  not  in  the  other.  As  a  general  rule, 
**  whenever  a  party  undertakes  to  do  any  act  as  the  agent  of  another, 
if  he  does  not  possess  any  authority  from  the  principal  therefor,  or 
if  he  exceeds  the  authority  delegated  to  him,  he  will  be  personally 
liable  to  the  person  with  whom  he  is  dealing  for,  or  on  account  of  his 
principal."  Story  on  Agency,  264.  The  same  principle  is  recog- 
nized in  Evans  on  Agency,  301;  Whart.  on  Agency,  524;  2  Smith's 
Lead.  Cases,  380,  note;  1  Pars.  Cont.  67,  and  in  numerous  adjudi- 
cated cases,  among  which  are  Hamjjton  vs.  Sjieckcnagel,  9  S.  &  R. 
212,  222;  11  Am.  Dec.  704;  Latjiig  vs.  Stewart,  1  W.  &  S.  222,  226; 
Mc('on7i  vs.  Lady,  10  W.  N.  C.  493;  Jefts  vs.  Yorh,  10  Cush.  392; 
Baltzen  vs.  Isicolay,  53  N.  Y.  467. 

In  the  latter  case,  it  is  said,  the  reason  why  an  agent  is  liable 
in  damages  to  the  person  with  whom  he  contracts  when  he  exceeds 
his  authority,  is  that  the  party  dealing  with  him  is  deprived  of 
any  remedy  upon  the  contract  against  the  principal.  The  con- 
tract, though  in  form  that  of  the  principal,  is  not  his  in  fact,  and 
it  is  but  just  that  the  loss  occasioned  by  there  being  no  valid  con- 
tract with  him  should  be  borne  by  the  agent  who  contracted  for 
him  without  authority.  In  Layng  vs.  Stewart,  siqna,  Mr.  Justice 
Huston  says:  "It  is  not  worth  while  to  be  learned  on  very  plain 
matters.  The  cases  cited  show  that  if  an  agent  goes  beyond  his 
authority  and  employs  a  person,  his  principal  is  not  bound,  and  in 
such  case  the  agent  is  bound." 

The  plaintiff  in  error,  in  McCon  vs.  Lady,  supra,  made  a  con- 
tract, believing  he  had  authority  to  do  so,  and  not  intending  to  bind 
himself  personally.     The  jury  found  he  had  no  authority  to  make 


604  Oases  on  Agency.  [Book  IV 

the  contract  as  agent,  and  this  conrt,in  afl&rming  the  judgment,  said: 
"  It  was  a  question  of  fact  submitted  to  the  jury  whether  the  plaint- 
iff in  error  had  authority  from  the  school  board  to  make  the  con- 
tract as  their  agent.  They  found  he  had  not.  He  was  personally 
liable  whether  he  made  the  contract  in  his  own  name  or  in  the 
name  of  his  alleged  principal.  It  is  a  mistake  to  suppose  that  the 
only  remedy  was  an  action  against  him  for  the  wrong.  The  party 
can  elect  to  treat  the  agent  as  a  principal  in  the  contract.'* 

The  cases  in  which  agents  have  been  adjudged  liable  personally 
have  sometimes  been  classified  as  follows,  viz.:  1,  Where  the 
agent  makes  a  false  representation  of  his  authority  with  intent  to 
deceive.  2,  Where,  with  the  knowledge  of  his  want  of  authority, 
but  without  intending  any  fraud,  he  assumes  to  act  as  though  he 
were  fully  authorized;  and  3,  Where  he  undertakes  to  act  bona 
fide,  believing  he  has  authority,  but  in  fact  has  none,  as  in  the 
case  of  an  agent  acting  under  a  forged  power  of  attorney.  As  to 
cases  fairly  brought  within  either  of  the  first  two  classes  there  can- 
not be  any  doubt  as  to  the  personal  liability  of  the  self-constituted 
agent,  and  his  liability  may  be  enforced  either  by  an  action  on  the 
case  for  deceit,  or  by  electing  to  treat  him  as  principal.  While  the 
liability  of  agents,  in  cases  belonging  to  the  third  class,  has  some- 
times been  doubted,  the  weight  of  authority  appears  to  be  that 
they  are  also  liable. 

In  Story  on  Agency,  the  learned  author,  recognizing  the 
undoubted  liability  of  those  belonging  to  the  first  two  classes,  says: 
**  Another  case  may  be  put  which  may  seem  to  admit  of  some  doubt, 
and  that  is  where  the  party  undertakes  to  act  as  an  agent  for  the 
principal,  bo7ia  fide,  believing  he  has  due  authority,  and  therefore 
acts  under  an  innocent  mistake.  In  this  last  case,  however,  the 
agent  is  held  by  law  to  be  equally  as  responsible,  as  he  is  in  the  two 
former  cases,  although  he  is  guilty  of  no  intentional  fraud  or  moral, 
turpitude.  This  whole  doctrine  proceeds  upon  a  plain  principle  of 
justice,  for  every  person  so  acting  for  another,  by  a  natural  if  not 
a  necessary  implication,  holds  himself  out  as  having  competent 
authority  to  do  the  act,  and  he  thereby  draws  the  other  party  into 
a  reciprocal  engagement.  If  he  has  no  such  authority  and  acta 
bona  fide,  still  he  does  a  wrong  to  the  other  party;  and  if  that 
wrong  produces  injury  to  the  latter,  owing  to  his  confidence  in  the 
truth  of  an  express  or  implied  assertion  of  authority  by  the  agent, 
it  is  perfectly  just  that  he  who  makes  such  assertion  should  be  per- 
Bonally  responsible  for  the  consequences,  rather  than  that  the  injury 


Chap.  Ill]  Keoegbe  vs.  Pitcaien.  605 

Bhould  be  borne  by  tbe  other  party  who  has  been  misled  by  it.** 
Story  on  Agency,  264.  This  principle  is  sustained  by  the  authori- 
ties there  cited,  among  which  is  Smout  vs.  llhery,  10  Mees.  &  Wels. 
1,9. 

Without  pursuing  the  subject  further,  we  are  of  the  opinion  that 
upon  the  facts  established  by  the  verdict,  judgment  should  have 
been  entered  for  the  plaintiff,  on  the  question  of  law. 

Judgment  reversed,  and  judgment  is  now  entered  in  favor  of  the 
plaintiff  for  $3,027.20,  the  amount  found  by  the  jury,  with  interest 
from  January  20,  1882,  the  date  of  the  verdict. 

Judgment  reversed. 

Note. — See,  also,  Farmers'  Co-operative  Trust  Co.  vs.  Floyd,  47  Ohio 
St.  525,  12  L.  R.  A.  346,  21  Am.  St.  Rep.  846,  and  notes. 


(100  New  Yokk,  140.) 

SIMMONS  vs.  MOEE. 

(N&VD  York  Court  of  Appeals,  October,  1885.) 

Action  to  recover  damages  for  alleged  breach  on  the  part  of 
defendants  of  an  implied  warranty  of  authority  to  execute  a  con- 
tract of  purchase  made  by  them  ostensibly  as  agents  for  and  on 
behalf  of  principals  named.  The  opinion  states  the  facts.  Plaintiff 
had  judgment  below. 

Adolph  L.  Sanger,  for  appellants. 
W.  C.  Beecher,  for  respondents. 

Daxfoeth,  J.  The  trial  court  refused  to  non-suit  the  plaintiffs, 
and  so  held  that  the  case  stated  and  proved  by  them  was  prima 
facie  sufficient  to  make  the  defendants  liable.  That  conclusion 
has  been  sustained  by  the  General  Term  and  we  think  properly. 
The  evidence  showed  that  the  plaintiffs  were  coffee  dealers  in  the 
city  of  New  York,  and  the  defendants  brokers  in  the  same  phice. 
The  latter  were  in  correspondence  with  other  brokers  (Turnley  & 
Co.)  of  the  city  of  Galveston,  Texas,  and  prior  to  the  6th  of  March, 
1882,  received  from  them  orders  to  buy  a  certain  quantity  of  coffee 
for  the  firm  of  Marx  &  Kempner,  and  a  certain  other  quantity  for 
Moore,  Stratton  &  Co.  of  Galveston. 

This  was  done,  and  bought  and  sold  notes  describing  the  con- 


506  Cases  on  Agency.  [Book  IV 

tracts  as  between  the  plaintiffs  and  these  firms  respectively  were 
signed  by  the  defendants  in  their  firm  name  as  brokers.  It  was 
apparent,  therefore,  npon  the  face  of  the  paper  that  they  were 
contracting  on  behalf  of  others  and  could  not  be  personally 
liable  as  purchasers,  {Flee!  vs.  Murfon,  L.  R.  7  Q.  B.  126),  but 
from  such  an  instrument  a  contract  is  to  be  implied  that  they  had 
authority  to  make  it  on  behalf  of  the  persons  named  [Fairlie  vs. 
Fenion,  L.  R.  5  Ex.  769),  and  on  this  the  plaintiffs  relied.  They 
caused  the  coffee  to  be  procured,  and  at  once  taken  to  the  dock 
for  shipment,  as  directed,  to  the  Galveston  merchants,  but  on 
arrival  at  that  place  it  was  refused  by  them  on  the  ground  that  the 
delivery  in  point  of  time  was  not  in  conformity  with  the  orders. 
It  then  appeared  that  the  orders  actually  given  by  them  to  Turnley 
&  Go.  required  in  each  instance  a  shipment  on  the  6th  of  March. 
This,  however,  was  not  communicated  to  the  plaintiffs,  nor  made  a 
part  of  the  contract,  nor  was  it  in  fact  known  to  the  defendants. 
They  obeyed  the  order  as  it  was  received  from  their  correspondents, 
but  they  executed  it  in  the  name  of  the  principals  and  so  assumed 
the  risk  of  its  correctness. 

First.  The  plaintiffs  have  no  cause  of  action  against  the  princi- 
pals, for  the  order  they  executed  was  not  their  order.  Hence  it 
was  given  by  the  defendants  in  excess  of  authority,  and  there  seems 
no  reason  why  they  should  not  make  good  all  damages  which  the 
plaintiffs  sustained  in  consequence  of  their  belief  that  the  author- 
ity assumed  did  in  fact  exist.  {Baltzen  vs.  Nicolaij,  53  N.  Y.  467). 
Second.  The  con  tract  was  admitted  by  the  pleadings,  and  was, 
moreover,  sufficient  in  form  to  satisfy  the  statute  of  frauds.  The 
defendants  are  held  liable,  because  they  had  no  authority  to  make 
it,  and  hence,  though  sufficient  in  form,  it  cannot  be  enforced 
against  the  apparent  principal. 

Third.  The  damages  recovered  were  only  those  directly  caused 
by  the  assertion  of  the  defendants  that  they  had  authority.  The 
amount  was  warranted  by  the  evidence,  and  the  question  was  sub- 
mitted to  the  jury  with  proper  instructions.  Whether  their  verdict 
was  excessive  is  not  the  proper  subject  for  inquiry. 

The  order  denying  a  new  trial  was  not  appealed  from,  and  the 
only  questions  properly  before  us  relate  to  the  correctness  of  the 
judgment.     In  that  we  find   no   error  and   think   it  should  be 

affirmed.     All  concur. 

Judgment  affirmed. 


Chap.  Ill]  Patterson  yb.  Lippincott.  507 

(47  New  Jersey  Law,  457,  54  Am.  Rep.  178.) 

PATTERSON    ys.   LIPPINCOTT. 

(Supreme  Court  of  New  Jersey,  November,  1885.) 

Action  of  debt  upon  the  contract  stated  in  the  opinion.  Judg- 
ment below  for  defendant. 

J.  J.  Crandall,  for  plaintiff, 

Slape  &  Stephany,  for  defendant. 

Scudder,  J.  An  action  of  debt  was  brought  in  the  court  for 
the  trial  of  small  causes  by  Jacob  M.  Patterson  against  Barclay 
Lippincott,  to  recover  the  balance,  $75,  claimed  under  a  contract 
in  writing  for  the  sale  of  the  exclusive  right  to  use,  manufacture 
and  sell  the  plaintiff's  patent  **  air-heating  attachment"  in  Atlantic 
county.  New  Jersey.  The  writing  was  signed  ''Geo.  P.  Lippincott, 
per  Barclay  Lippincott,"  on  the  part  of  the  purchaser.  The  state 
of  demand  avers  that  by  virtue  of  this  agreement  the  plaintiff 
did  in  due  form  convey  said  patent  right  to  said  George  P.  Lippin- 
cott, that  said  George  and  Barclay,  on  request  have  refused  to  pay 
said  balance,  and  that,  since  payment  became  dur,,  the  plaintiff  has 
found  out  and  charges  that  said  George  is  under  the  age  of  twenty- 
one  years.  He  further  avers  that  he  never  had  any  contract  or 
negotiations  with  George,  and  that  Barclay's  warranty  of  authority 
to  act  for  his  minor  son  is  broken,  whereby  an  action  has  accrued 
to  the  plaintiff  against  the  defendant. 

The  averment  that  the  plaintiff  never  had  any  contract  or 
negotiations  with  George  is  not  sustained  by  the  proof,  for  the  tes- 
timony of  Joseph  N.  Risley,  the  agent  who  made  the  sale,  which 
is  the  only  evidence  on  this  point  that  appears  in  the  case,  is  that 
the  defendant  told  him  he  was  going  out  of  business  and  intended 
to  transfer  it  to  George;  requested  him  to  see  George;  he  did  so, 
talked  with  him;  he  looked  at  the  patent;  was  satisfied  with  it,  and 
talked  with  his  father  about  buying  it.  The  deed  for  the  patent 
right  in  Atlantic  county  was  drawn  to  George  P.  Lippincott.  It 
is  proved  by  the  admission  of  the  defendant  Barclay  Lippincott 
that  at  the  time  of  such  sale  and  transfer  his  son  George  was  a 
minor.  This  admission  is  competent  testimony  in  this  suit  against 
him. 

A  verdict  of  a  jury  was  given  for  the  plaintiff  against  the 
defendant  in  the  court  for  the  trial  of  small  causes;  and  on  the 


508  Oases  o:s  Aqekcy.  [Book  IV 

trial  of  the  appeal  in  the  Court  of  Common  Pleas  there  was  a 
judgment  of  non-suit  against  the  plaintiff.  The  reason  for  the 
non-suit  does  not  appear  on  the  record,  but  the  counsel  have  argued 
the  cause  before  us  on  the  case  presented  by  the  pleadings  and 
proofs,  the  contention  being  here,  as  it  was  below,  that  the 
plaintiff  could  not  aver  and  show  the  infancy  of  George  P.  Lippin- 
cott,  and  bring  this  action  against  Barclay  Lippincott,  as  principal 
in  the  contract,  in  contradiction  of  its  express  terms. 

On  the  face  of  the  written  agreement  George  P.  Lippincott  is 
the  principal,  and  Barclay  Lippincott  the  agent.  The  suit  on  the 
contract  should  therefore  be  against  the  principal  named,  and  not 
against  the  agent,  unless  there  be  some  legal  cause  shown  to  change 
the  responsibility.  The  cause  assigned  by  the  plaintiff  is  the 
infancy  of  George  at  the  time  the  agreement  was  made  in  his  name 
by  his  father.  The  authority  on  which  he  bases  his  right  of  action 
is  Bay  vs.  Cook,  2  Zab.  (N.  J.)  343,  which  follows  and  quotes 
Moti  vs.  Hides,  1  Cow.  (N.  Y.)  536,  13  Am.  Dec.  550,  to  the  effect 
that  if  a  person  undertakes  to  contract  as  agent  for  an  individual 
or  corporation,  and  contracts  in  a  manner  which  is  not  legally  bind- 
ing upon  his  principal,  he  is  personally  responsible,  and  the  agent, 
when  sued  on  such  contract,  can  exonerate  himself  from  the 
person  ,1  responsibility  only  by  showing  his  authority  to  bind  those 
for  whom  he  has  undertaken  to  act.  Bay  vs.  Cooh  was  an  action 
against  an  overseer  who  had  employed  a  physician  to  attend  a  sick 
pauper,  without  an  order  for  relief  under  tlie  provisions  of  the  act 
concerning  the  poor.  As  his  parol  contract  with  the  physician  was 
entirely  without  authority  to  bind  the  township,  it  was  said  that 
he  had  only  bound  himself  to  pay  for  the  services  rendered  at  his 
request. 

Later  cases  have  held  that  an  agent  is  not  directly  liable  on  an 
instrument  he  executes,  without  authority,  in  another's  name; 
that  the  remedy  in  such  case  is  not  on  the  contract,  but  that  he 
may  be  sued  either  for  breach  of  warranty  or  for  deceit,  according 
to  the  facts  of  the  case.  Jenkins  vs.  Hutchinson,  13  Q.  B.  744; 
Leu-is  vs.  Nicholsoji,  18  Q.  B.  503;  Baltzenvs.  Kicolay,  53  N.  Y. 
467;  White  vs.  Madison,  26  N.  Y.  117,  and  many  other  cases  col- 
lected on  the  notes  in  Wharton  on  Agency,  §§  524,  532,  and  notes 
to  Thompson  vs.  Davenport,  9  B.  &  C.  78,  in  2  Smith's  Lead.  Cas. 
358  (Am.  ed).  Andrews,  J.,  in  Baltzen  vs.  Nicolay,  supra,  says: 
"  The  ground  and  form  of  the  agent's  liability  in  such  a  case  has 
been  the  subject  of  discussion,  and  there  are  conflicting  decisions 


Ohap.  Ill]  Patterson  vs.  Lippincott.  509 

upon  the  point;  but  the  later  and  better-considered  opinioa 
seems  to  bo,  tliat  his  liability,  when  the  contract  is  made  in  the 
name  of  principal,  rests  upon  an  implied  warranty  of  his  authority 
to  make  it,  and  that  the  remedy  is  by  an  action  for  its  breach." 

Although  the  state  of  demand  in  the  present  case  is  uniformly 
drawn,  there  is  in  the  last  sentence  a  charge  that  the  defendant's 
warranty  of  authority  in  pretending  to  act  for  said  minor  is  broken, 
whereby  an  action  has  accrued.  This  alleged  breach  of  an  implied 
warranty  is  founded  on  the  assumption  that  the  son  could  not  con- 
fer any  authority  during  his  minority  to  his  father  to  act  for  him 
in  the  purchase  of  this  patent  right.  There  are  two  answers  to 
this  position.  The  act  of  an  infant  in  making  such  a  contract  as 
this,  which  may  be  for  his  benefit  in  transacting  business,  either 
directly  or  through  the  agency  of  another,  is  voidable  only,  and  not 
absolutely  void,  and  therefore  there  is  no  breach  of  the  implied 
warranty  unless  there  be  proof  showing  that  the  act  of  the  agent 
was  entirely  without  the  infant's  knowledge  or  consent.  The 
mere  fact  of  the  infancy  of  the  principal  will  not  constitute  such 
breach. 

It  was  argued  in  Whitney  vs.  Dutch,  14  Mass.  457,  7  Am.  Dec. 
829,  that  a  promissory  note  signed  by  Dutch  for  his  partner  Green, 
who  was  a  minor,  was  void  as  to  Green,  because  he  was  not  capable 
of  communicating  authority  to  Dutch  to  contract  for  him,  and  that 
being  void,  it  was  not  the  subject  of  a  subsequent  ratification.  But 
the  court  held  that  it  was  voidable  only,  and  having  been  ratified 
by  the  minor  after  he  came  of  age,  it  was  good  against  him.  See 
Tyler.  Inf.  Ch.  Ill,  §§  14,  18. 

Another  answer  is  that  the  defense  of  infancy  to  this  contract 
with  the  plaintiff  can  only  be  set  up  by  the  infant  himself  or  those 
who  legally  represent  him.  Infancy  ia  a  personal  privilege  of 
which  no  one  can  take  advantage  but  himself.  Voorhees  vs.  Wait, 
3  Green  (N.  J.)  343;  Tyler  Inf.  ch.  IV,  §  19;  Bingham,  Inf.,  49. 

In  this  case  the  plaintiff  seeks  to  disaffirm  the  infant's  contract 
with  him,  in  his  own  behalf,  and  sue  a  third  party  on  the  contract, 
whose  authority  to  bind  him  the  infant  has  not  denied.  The 
privilege  of  affirming  or  disaffirming  the  contract  belongs  to  the 
infant  alone,  and  the  plaintiff  cannot  exercise  it  for  him.  The 
mere  refusal  to  pay,  charged  in  the  demand  and  proved,  is  not  a 
denial  of  the  defendant's  authority  to  bind  the  infant,  for  it  may 


510  Cases  ois"  Agency.  [Book  IV 

be  based  on  tbe  failure   of   consideration,    the  invalidity  of  tlie 
patent,  fraudulent  representations,  or  other  causes. 

The  judgment  of  nonsuit  entered  in  the  court  of  common  pleas 
will  be  affirmed. 


(64  Iowa,  220,  52  Am.  Rep.  436.) 

LEWIS  vs.  TILTON. 
(Supreme  Court  of  Iowa,  June,  1SS4.J 

Action  to  recover  upon  a  lease.  Defendants  demurred.  Judg- 
ment for  defendants.     Plaintiff  appeals. 

Williams,  Jaques  &  Adler,  for  appellant. 

Chambers  &  McElroy,  for  appellees. 

Seevers,  J.  *  *  *  The  more  serious  question  is  whether 
the  defendants  are  individually  liable  under  the  lease,  which  on  its 
face  shows  that  it  was  entered  into  between  the  plaintiff,  as  party 
of  the  first  part,  and  the  Ottumwa  Temperance  Keform  Club, 
party  of  the  second  part,  and  is  signed  by  the  plaintiff,  and  by  the 
defendants  as  follows: 

'  R.  L.  TiLTON. 

"Executive  committee  of  the   Ottumwa  J   S.  B.  Thrall. 

Temperance  Keform  Club.  |   David  Eaton. 

^  Joseph  JSloan.'* 

It  is  insisted  that  the  lease  shows  that  the  credit  was  extended 
to  the  club,  and  that  the  contract  was  made  with  it;  that  the 
principal  was  named,  and  therefore  the  defendants  cannot  be  made 
individually  liable.  This  line  of  argument  possibly  would  be  con- 
clusive if  there  was  a  principal.  But  there  is  none.  The  club  is 
a  myth.  It  has  no  legal  existence,  and  never  had.  It  cannot  sue 
or  be  sued. 

The  defendants  contracted  in  the  name  of  a  supposed  principal; 
that  is,  they  claim  there  was  a  principal  for  whom  they  were  acting, 
but  it  now  appears  that  there  was  no  principal  known  to  the  law. 
But  under  the  allegations  of  the  amended  petition,  it  should  be 
assumed,  we  think,  that  there  was  as  a  matter  of  fact  a  body  of 
men  associated  together  for  a  benevolent  purpose,  who  had  assumed 


Chap.  Ill]  Lewis  vs.  Ttlton.  611 

the  name  above  stated  for  the  avowed  purpose,  by  their  nnited 
efforts  of  suppressing  intemperance.  There  i.s  however  some  doubt 
in  our  minds  wliether  it  can  be  said  that  the  plaintiff  extended 
credit  to  an  organization  that  had  no  legal  existence.  As  the  law 
does  not  recognize  such  an  organization,  we  are  at  a  loss  to  know 
how  or  why  it  can  be  said  as  a  matter  of  law  that  the  plaintiff  con- 
tracted with,  and  extended  credit  to  a  mere  myth.  In  legal 
parlance,  the  organization  can  not  be  named.  It  has  no  habitation 
or  place  of  abode. 

It  is  also  insisted  that  a  fund  was  provided  for  the  payment  of 
debts,  and  hence  it  must  be  presumed  that  the  plaintiff  contracted 
in  reliance  upon  such  fund,  and  therefore  the  defendants  cannot 
be  made  individually  liable.  "What  the  fact  may  be  we  are  not 
advised,  but  certainly  this  does  not  appear  on  the  face  of  the  peti- 
tion and  we  have  looked  into  the  lease,  and  there  is  no  provision  in 
it  from  which  such  an  inference  can  be  drawn.  It  is  also  insisted 
that  there  is  no  known  legal  principle  or  rule  under  which  the 
defendants  can  be  made  liable.  It  is  said  that  they  are  not  parties. 
This  is  true;  that  is  to  say,  these  defendants  could  not  bind  any 
other  member  of  the  organization  as  a  partner  in  a  joint  enter- 
prise, or  a  contract  as  to  which  he  had  no  knowledge  and  to  which 
he  did  not  assent.  But  we  think  *'  those  who  engage  in  the  enter- 
prise (that  is,  became  members  of  the  organization)  are  liable  for 
the  debts  they  contracted,  and  all  are  included  in  such  liability 
who  assented  to  the  undertaking  or  subsequently  ratified  it.'* 

It  was  also  held  in  Ash  vs.  Guie,  97  Penn.  St.  493,  39  Am.  Rep. 
818  {ante,  p.  45  );  Fredendall  vs.  Taylor,  26  Wis.  286,  and  this  rule  is 
supported  to  some  extent  by  what  was  said  by  this  court  in  Keller 
vs.  Tracy,  11  Iowa,  530,  and  Drake  vs.  Board  of  Trustees,  11  Iowa, 
54.  But  it  is  said  these  defendants  did  not  contract.  They  cer- 
tainly represented  that  they  had  a  principal  for  whom  they  had 
authority  to  contract.  They,  for  or  on  behalf  of  that  alleged 
principal,  contracted  that  such  principal  would  do  and  perform 
certain  things.  As  we  have  said,  there  is  no  principal,  and  it 
seems  to  us  that  the  defendants  should  be  held  liable,  and  that  it  is 
immaterial  whether  they  be  so  held  because  they  held  themselves 
out  as  agents  for  a  principal  that  had  no  existence,  or  on  the 
ground  that  they  must,  under  the  contract,  be  regarded  as  princi- 
pals, for  the  simple  reason  that  there  is  no  other  principal  in 
existence.     We  think  the  demurrer  should  have  been  overruled. 

Judgment  reversed. 


613  Cases  oif  Agenct,  [Book  IV 

(60  Barboue,  56G.) 

HERRICK  vs.  GALLAGHER. 

(Supreme  Court  of  New  York,  November,  1871. J 

Herrick  was  an  expressman  and  received  from  another  carrier  a 
C.  0.  D.  package  for  Hintermyer,  which  purported  to  be  a  prize 
drawn  by  the  latter  in  a  lottery.  There  was  duo  upon  it  $20,25. 
Hintermyer  borrowed  the  money  of  Gallagher  to  get  the  package, 
which,  when  opened,  proved  to  contain  a  few  sticks  of  wood  and 
some  old  papers.  Hiute'rmyre  and  Gallagher  went  at  once  to 
Herrick's  house  and  persuaded  his  housekeeper  to  return  to  them 
the  identical  money  paid  by  them.  Herrick  sued  Gallagher  to 
recover  the  money.     Judgment  below  for  plaintiff, 

D.  O'Brien,  for  appellant. 
J.  B.  JSmtnes,  for  respondent. 

Talcott,  J.  (After  stating  the  facts.)  No  doctrine  in  the  law 
of  agency  is  better  established  than  that  which  is  laid  down  in 
Story  on  Agency  (§  300),  as  follows:  "If  a  party  who  has  paid 
money  to  an  agent  for  the  use  of  his  principal  becomes  entitled  to 
recall  it,  he  may,  upon  notice  to  the  agent,  recall  it,  provided  the 
agent  has  not  paid  it  over  to  his  principal,  and  also  provided  that 
no  change  has  taken  place  in  the  situation  of  the  agent  since  the 
payment  to  him  and  before  such  notice.'*  And  as  is  said  by  the 
court  in  Hear  my  vs.  Priiyn  (7  John.  179):  "An  action  maybe 
maintained  against  an  agent  who  has  received  money  to  which  the 
principal  had  no  right,  if  the  agent  has  had  notice  not  to  pay  it 
over.** 

This  principle  has  been  repeatedly  applied  in  cases  where  the 
money  has  been  paid  to  the  agent  by  mistake;  aforiioriia  it  appli- 
cable where  it  has  been  procured  by  the  fraud  of  either  the  agent 
or  the  principal.  (See  Cox  w.  Prentice,  3  M.  &  Sel.  345;  La  Farge 
vs.  Kneeland,  7  Cowen,  456:  Mowatt  vs.  McLelan,  1  Wend.  173. 

The  rule  laid  down  in  all  the  cases  is,  that  in  order  to  protect 
the  agent,  he  must  have  paid  over  the  money  to  his  principal,  or 
in  some  way  have  changed  his  situation  since  the  payment  of  the 
money  to  himself,  upon  the  faith  of  such  payment.  In  this  case  it 
is  not  pretended  that  the  plaintiff  had  paid  over  the  money  to  the 
consignors  or  the  express  company,  either  before  or  after  the  pay- 


Chap.  Ill]  Herkick  vs.  Gallagheb.  513 

ment  to  him.  In  answer  to  a  question  on  that  subject,  he  say 3 
that  he  had,  at  the  time  when  he  took  the  box,  the  amount  in  the 
hands  of  the  express  company. 

The  case  is  similar  in  principle  to  that  of  BuUer  vs.  Harrison, 
(Cowp.  515).  There,  a  claim  was  made  by  parties  in  New  York, 
through  their  agent  in  London,  upon  the  underwriters,  for  the 
alleged  loss  of  a  vessel.  The  underwriters,  supposing  the  loss  to 
be  fair,  as  did  the  agent,  paid  over  to  the  agent  the  amount  of  the 
policy.  Afterward  discovering  the  loss  to  be  foul,  they  gave  notice 
to  the  agent,  and  sued  him  to  recover  back  the  money.  The  agent 
had  credited  the  money  in  account  with  his  principals,  as  against  a 
larger  sum  in  which  they  stood  indebted  to  him,  but  had  given  no 
new  credit,  and  accepted  no  new  bills.  It  was  held.  Lord  Mansfield 
delivering  the  opinion  of  the  court,  that  the  plaintiffs  were  entitled 
to  recover.  Here,  the  money  was  obtained  by  a  palpable  fraud,  of 
which  the  express  company  and  the  plaintiS,  though  the  innocent 
instruments,  were  nevertheless  the  instruments  and  agents, 
through  whom  the  fraud  was  perpetrated. 

There  is  no  doubt  but  the  plaintiff  or  the  express  company, 
■whichever  had  received  the  money,  would  have  been  liable  to  the 
defendant  in  an  action  to  recover  it,  on  being  notified  of  the  fraud, 
and  a  demand  that  the  money  be  refunded;  and  no  doubt  the  identi- 
cal money,  if  it  were  traced,  as  it  was  in  this  case,  could  have  been 
replevied. 

The  defendant,  Hintermyer's  agent,  having  regained  possession 
of  the  money,  is  under  no  obligation,  legal  or  moral,  to  restore  it  to 
the  plaintiff;  neither  is  the  plaintiff  liable  to  the  consignors  or  the 
express  company.  The  charges  for  freight  follow  the  principal 
Bum.  Hintermyer  was  under  no  obligation  to  pay  the  freight,  and 
the  freight  money  was  an  incident  of,  and  obtained  by,  the  same 
fraud  as  the  larger  sum. 

The  plaintiff  and  the  express  company  have  been  imposed  upon 
by  the  consignors,  and  must  look  to  them  for  redress. 

The  judgment  of  the  county  court,  and  of  the  justice,  should  be 
reversel. 

Judgment  reversed. 

Note. — See,  also,  LarMn  va.  Hapgood,  58  Vt.  597;  Smith  vs.  Binder,  76 
m.492. 

33 


514  Cases  on  Agenot.  [Book  IV 


II. 

IN   TOKT. 


(34  Louisiana  Annual  1123,   44  Am.  Ebp.  456.) 

DELANEY  vs.  ROCHEREAU. 

(^Supreme  Court  of  Louisiana,  November,  1SS2.) 

Action  of  damages,  for  negligence  producing  death.  The  death 
was  caused  by  the  falling  of  a  gallery  upon  a  building  belonging 
to  a  foreign  owner,  and  in  charge  of  the  defendants  as  his  agents. 
The  defendants  had  judgment  below. 

Jos.  P.  Born  or  iindF.  W.  Baker,  for  appellant. 
C.  E.  Schmidt,  for  appellee. 

Bermudez,  C.  J.  This  is  an  action  to  hold  agents  liable  to 
third  parties  for  injury  sustained  in  consequence  of  an  alleged 
dereliction  of  duty,  or  non-feasance  on  their  part.     »     *     * 

The  contention  is,  that  as  the  injuries  received  caused  intense 
suffering,  and  as  they  were  occasioned  by  the  falling  of  the  gallery, 
which  v.as  in  very  bad  condition,  to  the  knowledge  of  the  defend- 
ants, who,  as  the  agents  of  the  owner,  were  bound  to  keep  it  in 
good  order,  and  who  without  justification  neglected  to  do  so,  their 
firm  and  each  member  thereof  are  responsible  in  solido  for  the 
damages  claimed. 

The  theory  on  which  the  suit  rests  is,  that  agents  are  liable  to 
to  third  parties  injured,  for  their  non-feasance. 

In  support  of  that  doctrine,  both  the  common  and  the  civil  law 
are  invoked. 

At  common  law  an  agent  is  personally  responsible  to  third  parties 
for  doing  something  which  he  ought  not  to  have  done,  but  not  for 
not  doing  something  which  he  ought  to  have  done,  the  agent  in  the 
latter  case,  being  liable  to  his  principal  only.  For  non-feasance  or 
mere  neglect  in  the  performance  of  a  duty,  the  responsibility  there- 
for must  arise  from  some  express  or  implied  obligation  between 
particular  parties  standing  in  privity  of  law  or  contract  with  each 
other.  No  man  is  bound  to  answer  for  such  violation  of  duty  or 
obligation  except  to  those  to  whom  he  had  become  directly  bound 
or  anienuble  for  his  conduct. 

Everyone,  whether  he  is  principal  or  agent,  is  responsible  directly 


Cliap.  Ill]  Delaney  vs.  Kochereau.  515 

to  persons  injured  by  his  own  negligence,  in  fulfilling  obligations 
resting  upon  him  in  his  individual  character  and  which  the  law 
imposes  upon  him,  independent  of  contract. 

No  man  increases  or  diminishes  his  obligations  to  strangers  by 
becoming  an  agent.  If  in  the  course  of  his  agency,  he  comes  in 
contact  with  the  person  or  property  of  a  stranger,  he  is  liable  for 
any  injury  he  may  do  to  either  by  his  negligence,  in  respect  to 
duties  imposed  by  law  upon  him  in  common  with  all  other  men. 

An  agent  is  not  responsible  to  third  persons  for  any  negligence 
in  the  performance  of  duties  devolving  upon  him  purely  from  his 
agency,  since  he  cannot,  as  agent,  be  subject  to  any  obligation! 
toward  third  persons  other  than  those  of  his  principal.  Those 
duties  are  not  imposed  upon  him  by  law.  He  has  agreed  with  no 
one  except  his  principal  to  perform  them.  In  failing  to  do  so,  he 
wrongs  no  one  but  his  principal,  who  alone  can  hold  him  responsi- 
ble. 

The  whole  doctrine  on  that  subject  culminates  in  the  proposi- 
tion that  wherever  the  agent's  negligence,  consisting  in  his  own 
wrong  doing,  therefore  in  an  act,  directly  injures  a  stranger,  then 
such  stranger  can  recover  from  the  agent  damages  for  the  injury. 
Story  Agency,  308,  309;  Story  Bailm.  165;  Shearm.  &  Redf.  Neg. 
Ill,  112,  ed.  1874;  Evans'  Agency,  notes  by  Ewell,  437,  438; 
Whart.  Neg.  535,  78,  83,  780. 

It  is  an  error  to  suppose  that  the  principle  of  the  civil  law,  on 
the  liability  of  agents  to  third  persons,  is  different  from  those  of 
the  common  law.     It  is  certainly  not  broader. 

While,  treating  of  "  negligence  in  discharge  of  duties  not  based 
on  contract,"  which  had  not  previously  been  considered,  Wharton, 
beginning  the  third  book  of  his  remarkable  work  on  Negligence, 
Bays: 

**  The  Roman  law  in  this  respect  rests  on  the  principle  that  the 
necessity  of  society  requires  that  all  citizens  should  be  educated  to 
exercise  care  and  consideration  in  dealing  with  the  persons  and 
property  of  others.  Whoever  directly  injures  another's  person  or 
property  by  the  neglect  of  such  care,  is  in  cidpa  and  is  bound  to 
make  good  the  injury  caused  by  his  neglect.  The  general  responsi- 
bility is  recognized  by  the  Aquilian  law,  enacted  about  three  cen- 
turies before  Christ,  which  is  the  basis  of  Roman  jurisprudence  in 
this  relation.  Culpa  of  this  class  consists  mainly  in  commission, 
in  faciendo.  Thus  an  omission  by  a  stranger  to  perform  an  act  of 
charity  is  not  culpa;  it  is  culpa,  hoAvever,  to  inadvertently  place 


616  Cases  os  Agency.  [Book  IV 

obstacles  on  a  road  over  which  another  falls  and  is  hurt,  to  kindle 
a  fire  by  which  another's  property  may  be  burned,  to  dig  a  trench 
which  causes  another's  wall  to  fall."  He  subsequently  states  that 
the  following  are  cases  in  which  no  responsibility  can  possibly 
attach: 

*'  When  a  man  does  everything  in  his  power  to  avoid  doing  the 
mischief,  or  when  it  is  of  a  character  utterly  out  of  the  range  of 
expectation,  the  liability  ceases  and  the  event  is  to  be  regarded  as  a 
casualty. 

**If  the  injury  is  due  to  the  fault  of  the  party  injured,  the 
liability  of  the  party  injuring  is  extinguished. 

"  Quod  quis  ex  sua  culjja  damnum  sentit,  non  intelligitur  sen- 
tire."— Fom^omns.     Whart.  Neg.  780.     300. 

The  allusion  made  by  certain  writers  to  the  Eoman  law,  which 
gives  a  remedy  in  all  cases  of  special  damages,  must  necessarily  be 
understood  as  referring  to  instances  in  which  the  wrong  or  damage 
is  done,  or  inflicted  by  an  actual  wrong-doing  or  commission  of  the 
injuring  party. 

The  article  of  the  French  Code,  1993,  from  which  article  3003  of 
our  E.  C.  C.  derives,  which  is  to  the  effect  that  the  agent  is 
responsible  not  only  for  unfaithfulness  in  his  management,  but  also 
for  his  fault  and  mistake,  contemplates  an  accountability  to  the 
principal  only,  and  this  by  reason  of  the  assumption  of  responsi- 
bility by  the  acceptance  of  the  mandate.  How  indeed  can  an  agent 
be  responsible  to  a  third  person  for  the  management  of  the  affairs 
of  his  principal,  or  for  a  mistake  committed  in  the  administration 
of  his  property?  The  responsibility  for  fault  is  likewise  in  favor 
of  the  "  mandant "  alone. 

The  Xapoleon  Code,  article  1165,  contains  the  formal  provision 
that  agreements  have  effect  only  on  the  contracting  parties;  they 
do  not  prejudice  third  parties,  nor  can  they  avail  them,  except  in 
the  case  mentioned  in  article  1121.  This  last  article  refers  to  stipu- 
lations in  favor  of  autrui,  which  become  obligatory  when  accepted. 

The  code  of  1808  contained  a  corresponding  article,  but  that  of 
1825  did  not;  neither  does  the  revised  code  of  1870.  It  must  not 
be  concluded,  however,  that  the  omission  to  incorporate  the  pro- 
vision in  the  subsequent  legislation  must  be  considered  as  a 
repudiation  of  the  doctrine. 

The  distinguished  compilers  and  framers  of  the  code  of  1825 
account  for  the  omission  to  reproduce  because  the  provisions  were 
already  embodied  in  other  articles,  and  might  be  deemed  to  be 


Chap.  Ill  ]  Delaney  vs.  Eoohereeau.  517 

exceptions  to  the  nndoubted  rule  that  contracts  can  only  avail  or 
prejudice  the  parties  thereto.     Frojct  du  Code  de  1825,  264. 

Quod  inter  alios  actum  est,  aliis  ncque  nocet,  aeque  prodest.  §  L. 
20,  De  instit.  Act.  See,  also,  Pothier  on  Oblig.  Nos.  85,  87; 
Domat  L.  1,  t.  16,  §  3,  No.  8;  L.  2,  t.  8;  Troplong  Mand.,  No. 
510;  Duranton  10,  No.  541;  Toullier  6,  341;  Toullier  7,  252,  306; 
Demolomle  25,  No.  38;  Laurent  10,  No.  377;  Larombiere,  1,  640. 

That  such  is  the  case  was  formerly  recognized  by  the  court  of 
Cassation  of  France,  in  the  case  of  Thomassin,  decided  in  July, 
1869,  and  reported  in  part  1  of  Dalloz,  J.  G.,  for  that  year. 
The  syllabus  in  the  case  is  in  the  following  words:  "  Le  manda- 
taire  n'est  responsahle  des  fautes  qu'il  co7nmet  dans  V  execution  du 
mandat,  qu'  envers  le  mandant."  See,  also,  J.  Gr.  Vo.  Obi.  nos. 
878  et  seq.,  and  Vo.  Mandat,  No.  213. 

The  case  of  Beaugillot  vs.  Callemer,  33  Sirey,  322,  far  from 
expounding  a  doctrine  antagonistical  to  that  prevailing,  as  was 
seen,  at  common  law,  and  which  we  consider  as  well  settled  like- 
wise under  the  civil  law,  is  fully  confirmatory  of  the  same.  It  was 
the  case  of  an  agent  condemned  to  pay  damages  for  obstructing, 
by  means  of  beams,  a  water-course  partly  closed  up  by  masonry, 
and  thus  causing  an  overflow,  in  consequence  of  which  a  hay  crop 
was  damaged.  The  plea  of  respondeat  superior,  did  not  avail. 
The  court  well  held  that  the  commission  of  the  act  constituted  a 
quasi  offense,  in  justification  of  which  the  mandate  could  not  be 
set  up. 

This  anterior  view  of  tbe  case  relieves  the  court  from  the  neces- 

eity  of  passing  upon  the  other  questions  presented,  relative  to  fault, 

trespass,  contributory  negligence,  suffering  and  damages. 

Judgment  afiirmed  with  costs. 

Judgment  affirmed. 

Note.— See,  also,  Baird  us.  SMpman,  133  IlL  16,  22  Am.  St.  Rep.  504; 
Ellis  vs.  McNaughton,  76  Mich.  237;  Campbell  vs.  Portland  Sugar  Co.,  62 
Me.  562,  16  Am.  Rep.  503;  Leuthold  vs.  Fairchild,  S3  Mimi.  Ill, 


518  Cases  on  Agency.  [Book  IV 

(130  Massachusetts,  102,  39  Am.  Eep.  437.) 

OSBOENE  vs.  MORGAN. 

{Supreme  Judicial  Court  of  Massachusetts,  January,  1881.  J 

Action  of  damages  for  personal  injury  by  negligence.     The  opin- 
ion states  the  case.     The  defendant  had  judgment  below. 

O.  F.  Verry  and  H.  L.  Parker,  for  plaintiff. 

W.  8.  B.  Hopkins  and  H.  F.  T.  Blackmer,  for  defendants. 

Gray,  0.  J.  The  declaration  is  in  tort  and  the  material  allega- 
tions of  fact,  which  are  admitted  by  the  demurrer,  are  that  while  the 
plaintiff  was  at  work  as  a  carpenter  in  the  establishment  of  a  man- 
ufacturing corporation,  putting  up  by  direction  of  the  corporation 
certain  partitions  in  a  room  in  which  the  corporation  was  conducting 
the  business  of  making  wire,  the  defendants — one  the  superintend- 
ent, and  the  others,  agents  and  servants  of  the  corporation  being 
employed  in  that  business,  negligently  and  without  regard  to  the 
safety  of  persons  rightfully  in  the  room,  placed  a  tackle-block  and 
chains  upon  an  iron  rail  suspended  from  the  ceiling  of  the  room 
and  suffered  them  to  remain  there  in  such  a  manner  and  so  unpro- 
tected from  falling  that  by  reason  thereof  they  fell  upon  and  injured 
the  plaintiff.  Upon  these  facts  the  plaintiff  was  a  fellow-servant  of 
the  defendants.  Farwell  vs.  Boston  <&  Worcester  Bailroad,  4  Mete. 
49,  38  Am.  Dec.  ^o^;Alhro  vs.  Agaivam  Canal,  6  Gush.  75;  Oilman 
vs.  Eastern  Railroad,  10  Allen,  233,  87  Am.  Dec.  635;  and  13  Id. 
433,  90  Am.  Dec.  210;  Holden  vs.  Fitchhurg  Railroad,  129  Mass. 
268,  37  Am.  Rep.  343;  Morgan  vs.  Vale  of  Keath  Railway,  5  B. 
&  S.  570,  736  and  L.  R.  1  Q.  B.  149. 

The  ruling  sustaining  the  demurrer  was  based  upon  the  judgment 
of  this  court  delivered  by  Mr.  Justice  Merrick  in  Albro  vs. 
Jaquith,  4  Gray,  99,  64  Am.  Dec.  56,  in  which  it  was  held  that  a 
person  employed  in  the  mill  of  a  manufacturing  corporation  who 
sustained  injuries  from  the  escape  of  inflammable  gas,  occasioned 
by  the  negligence  and  unskillfulness  of  the  superintendent  of  the 
mill  in  the  management  of  the  apparatus  and  fixtures  used  for 
the  purpose  of  generating,  containing,  conducting  and  burning 
the  gas  for  the  lighting  of  the  mill,  could  not  maintain  an  action 
against  the  superintendent.  But  upon  consideration  we  are  all  of 
the  opinion  that  that  judgment  is  supported  by  no  satisfactory 
reasons  and  must  be  overruled. 


Chap.  Ill]  OSBOENE  vs.    MORGAIT.  519 

The  principal  reason  assigned  was  that  no  misfeasance  or  positive 
act  of  wrong  was  charged,  and  that  for  non-feasance,  which  was 
merely  negligence  in  the  performance  of  a  duty  arising  from  some 
express  or  implied  contract  with  his  principal  or  employer,  an  agent 
or  servant  was  responsible  to  him  only  and  not  to  any  third  person. 

It  is  often  said  in  the  books  that  an  agent  is  responsible  to  third 
persons  for  misfeasance  only  and  not  for  nonfeasance.  And  it  is 
doubtless  true  that  if  an  agent  never  does  anything  toward 
carrying  out  his  contract  with  his  principal,  but  wholly  omits 
or  neglects  to  do  so,  the  principal  is  the  only  person  who  can 
maintain  any  action  against  him  for  the  nonfeasance.  But  if  the 
agent  once  actually  undertakes  and  enters  upon  the  execution  of  a 
particular  work  it  is  his  duty  to  use  reasonable  care  in  the  manner 
of  executing  it,  so  as  not  to  cause  any  injury  to  third  persons  which 
may  be  the  natural  consequence  of  his  acts;  and  he  cannot,  by 
abandoning  its  execution  midway  and  leaving  things  in  a  danger- 
ous condition,  exempt  himself  from  liability  to  any  person  who 
suffers  injury  by  reason  of  his  having  so  left  them  without  proper 
safeguards.  This  is  not  nonfeasance,  or  doing  nothing,  but  it  is 
misfeasance,  doing  improperly.  Ulpian  in  Dig.  9,  2,  27,  9;  Par- 
sons vs.  Winchell,  5  Cush.  592,  52  Am.  Dec.  745;  Bell  vs.  Josselyn, 
3  Gray,  309,  63  Am.  Dec.  741;  Noivell  vs.  Wright,  3  Allen,  166, 
80  Am.  Dec.  62;  Horner  vs.  Lawrence,  8  Vroom,  46. 

Negligence  and  unskilfnllness  in  the  management  of  inflam- 
mable gas,  by  reason  of  which  it  escapes  and  causes  injury,  can  no 
more  be  considered  as  mere  nonfeasance  within  the  meaning  of 
the  rule  relied  on,  than  negligence  in  the  control  of  fire  as  in  the 
case  in  the  Pandects;  or  of  water  as  in  Bell  vs.  Josselyn;  or  of  a 
drawbridge  as  in  Nowell  vs.  Wright',  or  of  domestic  animals  as  in 
Parsons  vs.  Winchell,  and  in  the  case  in  New  Jersey. 

In  the  case  at  bar,  the  negligent  hanging  and  keeping  by  the 
defendants  of  the  block  and  chains  in  such  a  place  and  manner  as 
to  be  in  danger  of  falling  upon  persons  underneath,  was  a 
misfeasance  or  improper  dealing  with  instruments  in  the  defend- 
ants' actual  use  or  control,  for  which  they  are  responsible  to  any 
person  lawfully  in  the  room  and  injured  by  the  fall  and  who  is  not 
prevented  by  his  relation  to  the  defendants  from  maintaining  the 
action. 

Both  the  ground  of  action  and  the  measure  of  damages  of  the 
plaintiff  are  different  from  those  of  the  master.  The  master's  right 
of  action  against  the  defendants  would  be  founded  upon  his  contract 


520  Cases  on  Agency.  [Book  IV 

with  them,  and  his  damages  wonld  be  for  the  injury  to  his  property, 
and  could  not  include  the  injury  to  the  person  of  this  plaintiff, 
because  the  master  could  not  be  made  liable  to  him  for  such  an 
injury  resulting  from  the  fault  of  fellow  servants,  unless  the  master 
had  himself  been  -  guilty  of  negligence  in  selecting  or  emploj'ing 
them.  The  jilaintifC's  action  is  not  founded  on  any  contract  but 
is  an  action  of  tort  for  injuries  which,  according  to  the  common 
experience  of  mankind,  were  a  natural  consequence  of  the  defend- 
ants' negligence. 

The  fact  that  a  wrongful  act  is  a  breach  of  a  contract  between 
the  wrong-doer  and  one  person  does  not  exempt  him  from  the 
responsibility  for  it  as  a  tort  to  a  third  person  injured  thereby. 
Hawkesworth  vs.  Thompson,  98  Mass.  77;  Norton  vs.  Sewall,  106 
Id.  143,  8  Am.  Rep.  298;  May  vs.  Western  Union  Telegrap^i,  112 
Mass.  90;  Griiincll  vs.  Western  Union  Telegraph,  113  Id.  299,  305, 
18  Am.  Rep.  485;  Ames  vs.  Union  Railway,  117  Mass.  541,  19 
Am.  Rep.  426;  Muhhey  vs.  MetTiodist  Religious  Society,  125  Mass. 
487;  Rapson  vs.  Cuhitt,  9  M.  &  \Y.  710;  George  vs.  Skivington,  L. 
R.,  5  Exch.  1;  Parry  vs.  Smith,  4  C.  P.  D.  325;  Foulkes  vs. 
Metropolitan  Railway,  4  Id.  267  and  5  Id.  157.  This  case  does 
not  require  us  to  consider  whether  a  contractor  or  a  servant  who 
has  completed  a  vehicle,  engine  or  fixture,  and  has  delivered  it  to 
his  employer,  can  be  held  responsible  for  an  injury  afterward 
Buffered  by  a  third  person  from  a  defect  in  its  original  construc- 
tion. See  Winterbottom  vs.  Wright,  10  M.  &  W.  109;  ColUs  vs. 
Selden,  L.  R.,  3  0.  P.  495;  Albany  vs.  Cunliff,  2  Comst.  165; 
Thomas  vs.  Winchester,  6  N.  Y.  397,  408,  57  Am.  Dec.  455; 
Coughtry  vs.  Globe  Woolen  Co.,  56  N.  Y.  124,  127,  15  Am.  Rep. 
389. 

It  was  further  suggested  in  Albro  vs.  Joqiiith,  that  many  of  the 
considerations  of  justice  and  policy,  which  led  to  the  adoption  of 
the  rule  that  a  master  is  not  responsible  to  one  of  his  servants  for 
the  injurious  consequences  of  negligence  of  the  others,  were  equally 
applicable  to  actions  brought  for  like  causes  by  one  servant  against 
another.  The  only  such  considerations  specified  were  that  the 
servant,  in  either  case,  is  presumed  to  understand  and  appreciate 
the  ordinary  risk  and  peril  incident  to  the  service,  and  to  predicate 
his  compensation  in  some  measure  upon  the  extent  of  the  hazard 
he  assumes,  and  that  **the  knowledge  that  no  legal  redress  ia 
afforded  for  damages  occasioned  by  the  inattention  or  unfaithful- 
ness of  other  laborers  engaged  in  the  same  common  work  will 


Chap.  Ill]  OSBOKNE  vs.    MORGAlf.  521 

naturally  induce  each  one  to  be  not  only  a  strict  observer  of  the 
conduct  of  others,  but  to  be  more  prudent  and  careful  himself,  and 
thus  by  increased  vigilance  to  promote  the  welfare  and  safety 
of  all." 

The  cases  cited  in  support  of  these  suggestions  were  Farwell  vs. 
Boston  (£  Worcester  Railroad,  4  Mete.  49,  and  King  vs.  Boston  <& 
Worcester  liailroad,  9  Gush.  112,  each  of  which  was  an  action  by 
a  servant  against  the  master;  and  it  is  hard  to  see  the  force  of  the 
Bug  estions  as  applied  to  an  action  by  one  servant  against  another 
servant. 

Even  the  master  is  not  exempt  from  liability  to  his  servants  for 
his  own  negligence;  and  the  servants  make  no  contract  with  and 
receive  no  compensation  from  each  other. 

It  may  well  be  doubted  whether  a  knowledge  on  the  part  of  the 
servants  that  they  were  in  no  event  to  be  responsible  in  damages 
to  one  another,  would  tend  to  make  each  more  careful  and  prudent 
himself.  And  the  mention  by  Chief  Justice  Shaw,  in  Farwell  vs. 
Boston  <§  Worcester  Railroad,  of  the  opportunity  of  servants,  when 
employed  together,  to  observe  the  conduct  of  each  other,  and  to 
give  notice  to  their  common  employer  of  any  misconduct,  incapa- 
city or  neglect  of  duty,  was  accompanied  by  a  cautious  withholding 
of  all  opinion  upon  the  question  whether  the  plaintiil  had  a  remedy 
against  the  person  actually  in  default,  and  was  followed  by  the 
statement  (upon  which  the  decision  of  that  case  turned,  and  which 
has  been  affirmed  in  subsequent  cases,  some  of  which  have  been 
cited  at  the  beginning  of  this  opinion),  that  the  rule  exempting 
the  master  from  liability  to  one  servant  for  the  fault  of  a  fellow 
servant  did  not  depend  upon  the  existence  of  any  such  opportunity, 
but  extended  to  cases  in  which  the  two  servants  were  employed  in 
different  departments  of  duty,  and  at  a  distance  from  each  other. 
4  Mete.  59-61. 

So  far  as  we  are  informed  there  is  nothing  in  any  other  reported 
case,  in  England  or  in  this  country,  which  countenances  the  defend- 
ants position,  except  in  Southcote  vs.  Stanley,  1  II.  &  N.  247;  s.  c, 
25  L.  J.  (N.  S.)  Ex.  339;  decided  in  the  Court  of  Exchequer  in 
1856,  in  which  the  action  was  against  the  master,  and  Chief  Baron 
Poi.LOCK  and  Barous  Aldeksox  and  Bramwell  severally  delivered 
oral  opinions  at  the  close  of  the  argument.  According  to  one  report. 
Chief  Baron  Pollock  uttered  this  dictum:  "Neither  can  one 
servant  maintain  an  action  against  another  for  negligence  while 
engaged  in  their  common  employment."     1  II.  &  N.  250.     But  the 


523  Oases  on  Agency.  [Book  IV 

other  report  contains  no  such  dictum,  and  represents  Baron 
Alderson  as  remarking  that  he  was  ''not  prepared  to  say  that  the 
person  actually  causing  the  negligence'*  (evidently  meaning  "caus- 
ing the  injury"  or  "  guilty  of  the  negligence  ")  ''whether  the  master 
or  servant  would  not  be  liable,"  25  L.  J.  (N.  S.)  Ex.  340. 

The  responsibility  of  one  servant  for  an  injury  caused  by  his 
own  negligence  to  a  fellow-servant  was  admitted  in  two  considered 
judgments  of  the  same  court,  the  one  delivered  by  Baron  Alder- 
son  four  months  before  the  decision  in  Southcote  vs.  Stanley,  and 
the  other  by  Baron  Bramwell  eight  months  afterward.  Wiggett 
vs.  Fox,  11  Exch.  832,  839;  Begg  vs.  Midland  Raihvay,  1  H.  &  N. 
773,  781.  It  has  since  been  clearly  asserted  by  Barons  Pollock 
and  HuDDLESTON.  Sioainson  vs.  Northeastern  Railway,  3  Exch. 
D.  341,  343;  and  it  has  been  affirmed  by  direct  adjudication  in 
Scotland,  in  Indiana  and  in  Minnesota.  Wright  vs.  Roxburgh,  2  Ct. 
of  Sess.  Oas.  (3d  series)  748;  Binds  vs.  Harlou,  58  Ind.  121;  Hinds 
vs.  Overacker,  66  Id.  547,  32  Am.  Eep.  114;  Griffiths  vs.  Wolfram, 

22  Minn.  185. 

Exceptions  sustained. 

Note.— See,  also,  Hare  vs.  Molntire,  82  Me.  240, 17  Am.  St.  Eep.  476. 


Chap.  IV]  BHADFOED    vs.    KiMBEELT.  62Z 


CHAPTER    IV. 

THE    DUTIES    AND    LIABILITIES    OF    THE   PRINCIPAL   TO 
THE   AGENT. 


I. 

agent's  right  to  COMPENSATIOS. 


(3  Johnson's  Chancery,  431,  1  Am.  Lead.  Oas.  866.) 

BRADFORD  vs.   KIMBERLY. 

CNew  York  Court  of  Chancery,  September,  1818.) 

Bill  for  accounting,  etc.  The  opinion  sufficiently  states  the 
facts. 

Wells,  for  plaintiff. 

Boyd,  for  defendants. 

The  Chancellor.  It  appears  in  proof  that  the  owners  of  the 
cargo  of  the  Edwardo,  in  January,  1814,  appointed  the  defendants 
their  agents  to  receive  and  sell  the  cargo,  and  distribute  the 
proceeds.  The  defendants  were  at  the  same  time  part  owners;  but 
this  special  agency  was  altogether  distinct  from  their  ordinary 
powers  as  part  owners,  and  they  were  to  be  considered,  for  this 
purpose,  as  agents  for  the  company,  and  in  that  character  they  were 
entitled  to  their  commissions  or  compensation,  in  the  same  manner 
as  any  other  persons,  being  strangers  in  interest,  would  have  been 
entitled  under  such  an  agency.  In  the  case  of  joint  partners,  the 
general  rule  is,  that  one  is  not  entitled  to  charge  against  another  a 
compensation  for  his  more  valuable  or  unequal  services  bestowed  on 
the  common  concern,  without  any  special  agreement,  for  it  is 
deemed  a  case  of  voluntary  management.  This  is  the  doctrine  in 
the  cases  on  this  point.  Thornton  vs.  I  roctor,  1  Austruther,  94; 
Burden  vs.  Burde  ,  1  Ves.  &  B.  170;  Franklin  vs.  Robinson,  1 
Johns.  Ch.  157.  But  where  the  several  owners  meet,  and  con- 
stitute one  of  the  concern  an  agent,  to  do  the  whole  business,  a 


624  Cases  on  Agency.  [Book  IV 

compensation  is,  necessarily  and  equitably,  implied  in  snch  special 
agreement,  and  they  are  to  be  considered  as  dealing  with  a  stranger. 
The  defendants  are,  consequently,  to  be  viewed  as  commission 
merchants  to  receive  and  sell  the  return  cargo,  and  they  are  entitled 
to  the  rights  belonging  to  that  character. 

If  this  conclusion  be  correct  there  is  then  no  doubt  that  the 
claim  on  the  part  of  the  defendant  must  be  admitted.  It  is  well 
settled,  that  a  factor  may  retain  the  goods  or  the  proceeds  of  them, 
not  only  for  the  charges  incident  to  that  particular  cargo,  but  for 
the  balance  of  his  general  account;  and  this  allowance  is  made  out 
not  only  while  the  goods  remain  in  specie,  but  after  they  are  con- 
verted into  money.  This  was  the  doctrine  declared  in  Kruger  vs. 
Wilcox,  Ambler,  252,  and  afterwards,  by  Lord  Maksfield,  in 
Godin  vs.  The  London  Assurance  Co.,  1  Burrows,  494,  and  by  Mr. 
J.  BuLLER,  in  Lickbarrow  vs.  Mason,  6  East,  23,  in  notis.  And 
it  is  further  settled,  that  this  lien  applies  not  only  for  the  amount 
of  the  money  actually  disbursed  for  the  necessary  use  of  the  prop- 
erty in  hand,  and  for  acceptances  actually  paid,  but  for  the  amount 
of  outstanding  acceptances  not  then  due.  The  factor  may  retain 
the  goods,  or  the  money  into  which  they  have  been  converted,  until 
he  is  indemnified  against  the  liability  to  which  he  has  subjected  him- 
self. Hamino7ids  vs.  Barclay,  2  East,  227;  Drinhwater  vs.  Good- 
win, Cowp.  251.  This  is  very  equitable  doctrine,  especially  when 
the  acceptances  and  responsibilities  were  assumed,  or  necessarily 
presumed  to  have  been  assumed,  upon  the  credit  of  the  property  in 
his  possession.      ♦      *      * 

Bill  dismissed,  with  costs. 

Note. — An  agent  has  a  particular  lien  for  his  commissions,  expenditures, 
advances  and  services  in  and  about  the  property  or  thing  entrusted  to  hia 
agency.  McKenzie  vs.  Nevius,  22  Me.  138,  38  Am.  Dec.  291;  Mclntyre  vs. 
Carver,  2  Watts  &  Serg.  (Penn.)  392,  37  Am.  Dec.  519;  Grinnell  vs.  Cook, 
8  HiU  (N.  Y.)  485,  38  Am.  Dec.  663;  Farrington  vs.  Meek,  30  Mo.  581,  77 
Am.  Dec.  627;  Mathias  vs.  Sellers.  86  Penn.  St.  486,  27  Am.  Rep.  723.  An 
agent  employed  to  obtain  a  loan  upon  a  commission  has  a  hen  for  the  same 
upon  the  loan  which  he  secures.  Vinton  vs.  Baldwin,  95  Ind.  433.  "An 
agent  may  have  a  lien  on  the  property  or  funds  of  his  principal  for  moneys 
advanced  or  liabilities  incurred  in  his  behalf;  and  if  moneys  have  been 
advanced  or  Uabilities  incurred  upon  the  faith  of  the  solvency  of  the  prin- 
cipal, and  he  becomes  insolvent  vs'hile  the  proceeds  and  fruit  of  such 
advances  or  liabilities  are  in  the  possession  of  the  agent,  or  within  his  reach, 
and  before  they  have  come  to  the  actual  possession  of  the  principal,  within 
every  prineiple  of  equity  the  agent  has  a  lien  upon  the  same  for  his  proteo- 
tion  and  indemnity."    Muller  vs.  Pondir,  55  N.  Y.  825. 


Chap.  IV  ]  Wallace  vs.  Floyd.  626 

(29  Penkstlvania  State,  184,  72  Am.  Deo.  620.) 

WALLACE  vs.  FLOYD. 

(Supreme  Court  of  Pennsylvania,  1857.) 

Floyd  Bned  Wallace  for  services  as  clerk,  seeking  to  recover  on  a 
quantum  meruit.  Wallace  alleged  that  the  services  were  rendered 
under  a  special  contract  fixing  the  rate. 

Bigham  and  Watson,  for  plaintiff  in  error. 

Penny  and  Sterrett,  for  defendant  in  error. 

Aemsteonq,  J.  (After  stating  the  facts  and  disposing  of  a 
question  of  practice). 

I  know  of  no  standard  of  value  that  could  be  more  satisfactory 
than  that  which  the  parties  fix  for  themselves,  and  where  there  is 
a  special  contract,  fixing  the  terms  and  conditions  on  which  one 
party  shall  serve  another,  in  the  absence  of  proof  rescinding  or 
altering  it,  it  is  conclusive.  If  a  tenant  holds  over  without  notice 
to  quit,  or  a  new  contract,  the  terms  and  conditions  of  his  old 
lease  will  govern.  So  if  a  man  agrees  to  serve  another  for  a  month 
or  year,  at  a  stipulated  sum  per  month  or  year,  and  silently  contin- 
ues longer  in  the  service,  it  will  be  on  the  old  terms. 

If  there  was  a  special  contract  existing,  it  was  the  duty  of  Floyd 
to  give  notice  to  his  employer  if  he  wished  to  alter  or  enlarge  its 
terms;  and  it  would  then  have  been  incumbent  on  Wallace  to 
accede  to  the  demand  or  terminate  the  service.  The  court  said,  in 
answer  to  the  defendant's  offer:  "  The  inquiry  is  as  to  the  value 
of  plaintiff's  services,  and  not  as  to  the  contract  price;  and,  so  far 
as  the  evidence  may  tend  to  show  their  value,  it  is  admitted." 
From  this  the  jury  might  very  readily  suppose  that  the  "  contract 
price "  was  excluded,  and  that  it  was  only  the  other  evidence  in 
the  cause  from  which  they  could  fix  the  value.  If  no  contract  was 
proved,  this  might  be  correct.  But  if  there  was  a  special  agree- 
ment, as  is  alleged,  not  changed  or  rescinded,  it  would  control;  and 
it  was  error  to  mingle  it  with  other  evidence  to  enhance  the  value. 
Judgment  reversed,  and  venire  de  novo  awarded. 


626  Cases  o^f  Agehcy.  [Book  IV 

(58  New  Hampshieb,  392.) 
WILSON  vs.  DAME. 

Assumpsit.     The  opinion  states  the  facta. 

Page,  for  the  plaintiff. 

Hodgdon  and  Hatch,  for  the  defendant. 

Bingham,  J.  The  facts  reported  by  the  referee  establish  (1) 
that  the  defendant,  city  marshal  of  Portsmouth,  desired  to  arrest 
Walters;  (2)  that  the  plaintiff  rendered  necessary  and  valuable 
services  in  accomplishing  it,  as  the  defendant's  servant  or  agent, 
expecting  to  be  paid  for  them;  (3)  that  the  defendant,  knowing 
these  facts,  accepted  the  services,  intending  to  pay  for  them,  and 
afterwards,  on  receiving  the  reward,  promised  the  warden  that  he 
would  do  so. 

If  a  person  acts  as  an  agent,  without  authority,  and  the  princi- 
pal, after  full  knowledge  of  the  transaction,  ratifies  it,  it  will  be 
his  act,  the  same  as  if  he  had  originally  given  the  authority;  and  the 
agent  will  be  entitled  to  the  same  rights  and  remedies,  and  to  the 
same  compensations,  as  if  he  had  acted  within  the  scope  of  an 
acknowledged  original  authority.     Story  on  Agency,  §  244. 

If  the  case  does  not  show  an  original  employment  of  the  plaint- 
iff,  or  a  request  to  assist  in  the  arrest  and  return  of  the  convict, 
it  clearly  shows  that  the  defendant  accepted  and  ratified  whatever 
the  plaintiff  did,  and  that  the  defendant  is  liable  to  pay  a  reason- 
able compensation  for  the  same.  Hatch  vs.  Tat/lor,  10  N.  H.  538, 
{ante,  p.  345);  Low  vs.  Railroad,  45  N.  H.  370;  8.  o.  46  N.  H.  284. 

Judgment  on  the  report 


(61  New  Yoek,  362,  19  Am.  Eep.  285.) 

HOWARD  vs.  DALY. 

(New  York  Court  of  Appeals,  January,  1876.) 

Action  for  the  breach  of  an  alleged  contract  of  employment. 
Plaintiff  alleged  that  on  the  20th  of  April,  1870,  she  contracted 
with  defendant  to  serve  him  as  an  actress  at  his  theater  in  New 
York  for  the  season  commencing  on  or  about  September  15,  1870, 


Chap.  IV]  Howard  vs.  Daly.  527 

and  terminating  on  or  about  July  1,  1871,  at  ten  dollars  a  week. 
That  at  the  proper  time  she  appeared  and  offered  to  enter  upon 
Buch  service,  but  was  prevented  by  defendant.  The  answer  was  a 
general  denial. 

The  referee  found  the  facts  substantially  as  alleged  by  the 
plaintiff,  and  that  plaintiff  was  entitled  to  judgment  for  $410. 
The  other  facts  are  sufficiently  stated  in  the  opinion. 

Richard  M.  Henry,  for  appellant. 

Spencer  L.  Ilillier,  for  respondent. 

DwiQHT,  C.  It  is  insisted  by  the  defendant  that  the  complaint 
in  this  cause  should  have  been  dismissed,  on  the  ground  that 
the  plaintiff  made  and  maintained  no  proper  tender  of  service. 
The  finding  of  the  referee  that  the  plaintiff  offered  and  tendered 
performance  of  her  part  of  the  contract,  but  that  the  defendant 
repudiated  the  contract,  and  thereby  prevented  the  plaintiff  from 
performing  her  part  of  it,  is  said  to  be  unsustained  by  the  evidence, 
and  to  be  erroneous. 

As  this  is  substantially  the  whole  question  raised  by  the  defend- 
ant on  this  appeal,  it  will  be  the  most  convenient  way  to  discuss  it, 
to  consider  the  effect  of  the  acts  of  the  defendant  denying  the 
existence  of  the  contract.  The  fact  that  there  was  a  valid  contract 
has  been  found  by  the  referee.  The  evidence  showed  that  a  pro- 
posal, in  writing,  was  made  by  Mr.  Daly  to  the  plaintiff  for  an 
engagement  of  her  services  for  the  year  18G9.  The  plaintiff  tes- 
tifies that  she  signed  an  acceptance  on  Saturday,  April  13,  1870, 
and  placed  it  in  the  letter  box  of  the  defendant,  at  the  theater. 
The  defendant  admits  that  this  letter  box  was  sometimes  used  as  a 
place  for  deposit  of  the  duplicates  of  contracts  made  between  him 
and  the  actors.  It  is  true  that  he  testified  that  he  never  received 
the  papers  which  the  plaintiff  asserts  that  she  deposited  in  the  box. 
This,  however,  is  immaterial.  The  minds  of  the  parties  met  when 
the  plaintiff  complied  with  the  usual,  or  even  occasional  practice, 
and  left  the  acceptance  in  a  place  of  deposit  recognized  as  such  by 
the  defendant.  This  doctrine  is  analogous  to  that  which  has  been 
adopted  in  the  case  of  communication*  by  letter  or  by  telegraph. 
Vassar  vs.  Camp,  11  N.  Y.  441;  Trevor  vs.  Wood,  36  Id.  307,  93 
Am.  Dec.  611.  The  principle  governing  these  cases  is,  that  there 
is  a  concurrence  of  the  minds  of  the  parties  upon  a  distinct  proposi- 
tion, manifested  by  an  overt  act.  WJiiie  vs.  Corlies,  46  N.  Y.  467. 
The  deposit  in  the  box,  under  the  circumstances  of  the  present  case 
is  such  an  act. 


528  Oases  on  Agency.  [Book  IV 

The  case  may  also  be  rested  upon  the  fact  there  was  evidence  to 
lead  to  a  presumption  that  the  document  reached  the  defendant, 
as  it  was  placed  in  a  receptacle  considered  by  him  to  be  a  suitable 
one  for  the  deposit  of  documents  of  this  class.  In  the  ordinary 
course  of  business  it  would  reach  the  defendant,  as  he  would  be 
supposed  to  have  competent  attendants  in  charge  to  transact  hia 
business.  His  denial  that  he  received  it  simply  raises  a  case  of 
conflict  of  evidence,  on  which  the  referee  has  passed  in  the  plaint- 
iff's favor.  In  Dana  vs.  EemUe,  19  Pick.  (Mass.)  112,  it  appeared 
that  it  was  the  usage  of  a  hotel  to  deposit  all  letters  left  at  the  bar 
in  an  urn  kept  for  that  purpose,  whence  they  were  sent,  almost 
every  fifteen  minutes  throughout  the  day,  to  the  rooms  of  the 
different  guests  to  whom  they  were  directed.  It  was  held  that 
there  was  a  presumption  that  a  letter  addressed  to  one  of  the 
guests  left  at  the  bar  was  received  by  him.  The  same  point  was 
ruled,  in  substance,  in  Hetherington  vs.  Kemp,  4  Camp.  192,  where 
a  letter  was  placed  on  a  table  where  letters  were  usually  placed  to 
go  to  the  post-oflice.  The  court  held  that  this  would  be  sufficient 
if  it  were  proved  that  they  were  usually  carried  to  the  post-office. 
Though  no  strict  usage  was  established  in  the  case  at  bar,  there 
was  enough  proved  to  show  that,  in  the  ordinary  course  of  business, 
the  letter  addressed  to  him  by  the  plaintiff  was  likely  to  reach  him. 

The  evidence  bearing  upon  the  referee's  finding  that  the  defend- 
ant repudiated  the  contract  thus  formed,  is  substantially  as  follows: 
At  the  end  of  August  or  at  the  beginning  of  September,  1870,  the 
plaintiff  saw  the  defendant's  posters  in  the  street,  with  a  list  of  his 
company.  Not  seeing  her  name,  she  wrote  to  the  defendant  for 
an  explanation,  but  received  no  answer.  She  then  went  to  the 
theater,  where  she  met  the  defendant  and  asked  him  why  he  had 
not  answered  her  letter,  to  which  inquiry  he  replied  that  he  had 
answered  it;  that  it  was  lying  in  the  box  office  of  the  theater  for 
her  and  had  not  been  sent  to  her  because  he  expected  she  would 
call  for  it.  The  defendant  then  handed  her  the  letter,  which  bore 
date  August  31st,  and  which  stated  that  he  was  not  aware  of  mak- 
ing any  engagement  with  the  plaintiff  for  the  present  season,  and 
that  he  certainly  had  no  contract  with  her.  After  she  had  read 
this  letter,  she  said  to  the  defendant  that  she  liad  his  paper  of 
engagement.  He  seemed  quite  surprised,  and  said  that  he  had  not 
got  hers,  knew  nothing  about  it,  and  had  not  engaged  her.  On 
her  cross-examination,  the  plaintiff  testified  that  the  conversation 
just  detailed  occurred  the  day  after  the  theater  opened. 


Chap.  IV]  Howard  vs.  Daly.  529 

The  defendant  gives  a  version  of  the  interview  not  materially 
diUcrcnt.  He  says  that  some  time  after  the  issue  of  the  prelim- 
inary poster,  stating  the  announcement  of  the  season  of  1870-71, 
the  plaintiff  called  on  him  and  wished  to  know  why  her  name  was 
not  on  the  poster,  and  he  replied  because  she  was  not  a  member  of 
the  company.  She  then  stated  that  she  had  signed  a  contract,  and 
he  then  called  her  attention  to  a  notice  which  he  had  issued  requir- 
ing an  acceptance  by  a  particular  day,  and  stated  that  he  had  not 
received  hers.  The  treasurer  of  the  defendant  (Mr.  Appleton), 
who  heard  the  conversation,  says  that  the  plaintiff,  having  asked 
why  her  name  was  not  on  the  poster,  the  defendant  answered,  it 
was  because  she  had  not  complied  with  the  notice  put  up  in  his 
green-room;  and,  there  not  being  any  contract,  he  could  not 
announce  her  as  one  of  the  company. 

This  testimony  shows  that  the  defendant  unequivocally  refused 
to  recognize  the  contract.  After  the  plaintiff's  statement,  he 
positively  declined  to  receive  her  as  one  of  the  company.  The 
evidence  is  not  perfectly  distinct  on  the  point  whether  the  plaint- 
iff's duties  had  commenced  at  the  time  when  the  defendant's 
denial  of  the  contract  was  made.  This  may,  perhaps,  be  inferred 
from  a  statement  made  by  her  on  cross-examination,  that  the  con- 
versation occurred  the  day  after  the  theater  was  opened.  As  the 
matter,  however,  remains  in  some  doubt,  the  subject  will  be  exam- 
ined from  both  points  of  view. 

1.  I  shall  first  consider  the  question  on  the  supposition  that 
the  plaintiff's  period  of  service  had  already  arrived,  and  that,  on 
her  application  for  permission  to  fulfill  her  contract,  the  defend- 
ant repudiated  his  obligations. 

No  precise  form  of  words  was  necessary  on  his  part  to  reject  her 
services;  the  obligation  of  the  contract  being  created,  a  denial  of 
its  existence  was  equivalent  to  a  refusal  to  allow  her  to  enter  upon 
the  services.  The  defendant's  intent  is  plain.  He  might  reject 
her  services  indirectly  as  well  as  directly.  The  sole  inquiry  is, 
whether  he  has  done  an  act  inconsistent  with  the  supposition  that 
the  service  continues.  In  the  case  of  Short  vs.  Stone,  8  Ad.  & 
Ell.  (N.  S.),  358,  it  was  held  that  if  a  man  promised  to  marry  a 
woman  on  a  future  day,  and  before  that  time  married  another,  he 
had  broken  the  contract  with  the  first  woman.  This  was  on  the 
ground  that  the  act  done  was  inconsistent  with  the  contract  rela- 
tions of  the  parties.  See,  also.  Lovelock  vs.  Franklyn,  8  Ad.  & 
34 


630  Cases  o:s  Agency.  [Book  IV 

Ell.  (N.  S.),  371.  I  think,  accordingly,  that  the  refusal  of  the 
defendant  to  recognize  the  contract  was  equivalent  to  a  refusal  to 
continue  the  plaintiff  in  his  employment. 

The  next  point  is,  whether  the  plaintiff  was  bound,  notwith- 
standing the  defendant's  act,  to  keep  herself  in  readiness  to  per- 
form the  contract  at  all  times,  or  in  any  form  to  tender  her  ser- 
vices. This  inquiry  involves  the  correct  theory  of  the  nature  of 
the  action.  Does  the  plaintiff  sue  for  wages  on  the  hypothesis  of 
a  constructive  service,  or  for  damages?  This  question,  as  far  as  it 
appears,  has  never  been  fully  discussed  in  the  appellate  courts  of 
this  State;  and,  on  account  of  both  its  novelty  and  importance, 
will  be  considered  at  length. 

It  is  very  plain,  that  if  a  servant  has  actually  performed  the  ser- 
vice which  he  has  agreed  to  render  under  the  contract,  he  has  a 
right  to  recover  ivages.     That  would  have  been  true  in  the  case  at 
bar  if  the  defendant  had  received  her  services  for  the  stipulated 
period.     Had  he  not  paid  her  according  to  the  agreement,  her  action 
would  have  been  for  the  fixed  wages.     If,  on  the  other  hand,  she 
is  wrongfully  discharged,  and  the  relation  of  master  and  servant  is 
broken  off  as  far  as  he  is  concerned,  it  is  clear  that  she  cannot 
recover  for  wages  in  the  same  sense  as  if  she  had  actually  rendered 
the  service.     In  an  early  nisi  prius  case  the  fiction  of  a  "  construc- 
tive "  service  was  resorted  to,   and  a  servant  discharged  without 
cause  was  allowed  to  recover  wages.       Gandell  vs.   Pontigny,  4 
Campb.  375,  see,  also,  Collins  vs.  Price,  4  Bing.  132.     This  view 
has  been  discarded  in  later  decisions,  and  has  been  disapproved  by 
text  writers.     Archard  vs  Ilornor,  3  Carr.  &  Payne,  349;  Smith  vs. 
Hay  ward,  7  Ad.  &  Ell.  544;  Aspdin  vs.  Austin,  5  Ad.  &  Ell.  (N. 
S.)  671;  Fewings  vs.  Tisdal,  1  Exch.  295;  Elderton  vs.  Emmens, 
6  Com.  Bench,  178;   Goodman  vs.  Pococlc,  15  Ad.  &  Ell.   (N.  S.) 
582;  Mr.  Smith's  notes  to   Cutter  vs.   Powell,  2  Smith's  Leading 
Cases,  20;  0.  M.  Smith  on  the  law  of  master  and  servant,  p.  95, 
noteg;  Whiialcer  vs.  Sandifer,  1  Duvall  (Ky.),  261;   Chamlcrlin 
vs.  McCallister,  6  Dana,  352;  Clarh  vs.  Marsiglia,  1  Den.  317,  43 
Am.  Dec.  670;  Durhee  vs.  Mott,  8  Barb.  423;  Moody  vs.  Leverich, 
4  Daly,  401. 

These  cases  and  authorities  hold,  in  substance,  that  if  a  servant 
be  wrongfully  discharged,  he  has  no  action  for  wages,  except  for 
past  services  rendered,  and  for  sums  of  money  that  have  become 
due.     As  far  as  any  other  claim  on  the  contract  is  concerned,  ho 


Chap.  IV  ]  Howard  vs.  Daly.  531 

must  sue  for  the  injury  he  has  sustained  by  his  discharge,  in  not 
being  allowed  to  serve  and  earn  the  wages  agreed  upon.  Smith  on 
Master  and  Servant,  96,  note  n;  Elderton  vs.  Evimons,  6  Com. 
Bench,  187;  Beckham  vs.  Drake,  2  Ho.  Lords  Cases,  606.  A  servant 
wrongfully  discharged  has  but  two  remedies  growing  out  of  the 
wrongful  act:  (1)  He  may  treat  the  contract  of  hiring  as  continu- 
ing, though  broken  by  the  master,  and  may  recover  damages  for 
the  breach.  (2)  He  may  rescind  the  contract;  in  which  case  he 
could  sue  on  a  quantum  meruit,  for  services  actually  rendered. 
These  remedies  are  independent  of  and  additional  to  his  right  to 
sue  for  wages,  for  sums  actually  earned  and  due  by  the  terms  of  the 
contract.  This  last  amount  he  recovers  because  he  has  completed, 
either  in  full  or  in  a  specified  part,  the  stipulations  between  the 
parties.  The  first  two  remedies  pointed  out  are  appropriate  to  a 
wrongful  discharge. 

To  apply  these  principles  to  the  case  at  bar,  the  plaintiff  must 
have  been  ready  and  willing  to  continue  in  the  defendant's  service 
at  the  time  of  the  latter's  refusal  to  receive  her  into  his  employ- 
ment. 2  Wms.  Saund.  352,  et  seq.,  note  to  Feelers  vs.  Ojne.  It 
is  not  necessary,  however,  that  she  should  go  through  the  barren 
form  of  offering  to  render  the  service.  Wallis  vs.  Warren,  4 
Exch.  361;  Levy  vs.  Lord  Herbert,  7  Taunt.  314;  Carpenter  vs. 
Eolcomb,  105  Mass.  284,  and  cases  cited  in  opinion  by  Colt,  J. 
Her  readiness,  like  any  other  fact,  may  be  shown  by  all  the  circum- 
stances.    It  sufficiently  appeared  by  the  contract  of  the  parties. 

After  the  defendant  had  declined  to  give  her  employment,  there 
was  no  further  duty  on  the  plaintiff's  part  to  be  in  readiness  to 
perform.  If  that  readiness  existed  when  the  time  to  enter  into 
service  commenced,  and  the  defendant  committed  a  default  on  his 
part,  the  contract  was  broken  and  she  had  a  complete  cause  of 
action.  Tender  of  performance  is  not  necessary  when  there  is  a 
willingness  and  ability  to  perform,  and  actual  performance  has 
been  prevented  or  expressly  waived  by  the  parties  to  whom  per- 
formance is  due.  Franchot  vs.  Leach,  6  Cow.  506;  Cort  vs. 
Ambergate  and  R.  R.  Co.,  17  A.  &  E.  (N.  S.)  127.  This  rule  ia 
recognized  in  Nelson  vs.  FUmpton  Fireproof  E.  Co.,  55  N.  Y.  480, 
484.  Her  future  conduct  could  not  affect  her  right  to  sue,  though 
it  might  bear  on  the  question  of  damages.  She  was  not  obliged  to 
remain  in  New  York,  or  in  any  form  to  tender  her  services  after 
they  had  been  once  definitely  rejected. 

If  this  theory  of  the  plaintiff's  case  is  correct,  her  only  further 


532  Cases  on  Agency.  [Book  IV 

duty  was  to  use  reasonable  care  in  entering  into  other  employment 
of  the  same  kind  and  thus  reduce  the  damages.     This  obligation 
is  of  a  general  nature,  and  not  peculiarly  applicable  to  contracts 
of  service.     The  cases  on  this  point  are:    Emmons  vs.  Elderton,  4 
H.   L.   Cas.   64:6;' Cost jgan  vs.  Mohawk  &  H.  R.  R.  To.,  2  Den. 
609,   43  Am.  Dec.    758;   Dillon  vs.  Anderson,   43   N.    Y.    231. 
Hamilton    vs.    McPherson,    28    Id.     76,     84    Am.    Dec.    330. 
The    uncontradicted    testimony    was,    that   this    duty   was    dis- 
charged by   the  plaintiff.     She  made  effort  to  procure  employ- 
ment,   but    failed.      While     it    would    be    unquestionably    hei 
duty    to    accept,  if   offered,    another    eligible   theatrical  engage- 
ment,    it    could    scarcely  be    expected    that    she    should  spend 
much  time  in  actively   seeking  for  employment.     Having  made 
some  effort  and  having  failed,  I  think  she  was  justified,  under 
the   known   usage  in    that    business    of   forming   companies    of 
actors  at  certain  seasons  of  the  year,  and  the  slight  prospect  of 
success  in  making  an  engagement  after  the  15th  of  September,  in 
awaiting  the  close  of  the  theatrical  season.     IIow  far  a  person  who 
is  wrongfully  discharged  from  employment  is  bound  to  seek  it,  is 
not,  perhaps,  fully  settled.     Chamberlain  vs.  Morgan,  68  Penn. 
St.  168;  King  vs.  Steiren,  44  Id.  99.     In  the  first  of  these  cases 
it  is  said  that  it  is  the  duty  of  a  dismissed  servant  not  to  remain 
idle,  and  that  the  defendant  may  show,  in  mitigation  of  damages, 
that  the  plaintiff  might  have  procured  employment.     This  seems 
to  be  a  reasonable  rule.     Prima  facie,  the  plaintiff  is  damaged  to 
the  extent  of  the  amount  stipulated  to  be  paid.     The  burden  of 
proof  is  on  the  defendant  to  show  either  that  the  plaintiff  has 
found  employment  elsewhere,  or    that  other  similar  employment 
has  been  offered  and  declined,  or,  at  least,  that  such  employment 
might  have  been  found.     I  do  not  think  that  the  plaintiff  is  bound 
to  show  affirmatively,  as  a  part  of  her  case,  that  such  employment 
was  sought  for  and  could  not  be  found.     2  Greenl.  on  Ev.  §  261a; 
Costigan  vs.  M.  i&  H.  R.  R.  Co.,  2  Den.  609,  43  Am.  Dec.  758. 

No  such  evidence  having  been  offered  by  the  defendant,  the 
plaintiff  should  recover  the  whole  amount  of  her  stipulated  com- 
pensation as  the  damages  attributable  to  the  defendant's  breach  of 
contract.  This,  as  has  been  seen,  is  the  true  measure  of  damages. 
Clossman  vs.  Lccoste,  28  E.  L.  and  Eq.  140;  Goodman  vs.  Pocock, 
15  Ad.  &  El.  576;  Smith  vs.  Thomson,  8  C.  B.  444;  Smith  on  Master 
Bnd  Servant,  98. 

Some  of  the  cases  which  may  appear  to  conflict  with  this  opinion. 


Chap.  IV  ]  HowAED  vs.  Daly.  633 

or  which  are  at  variance  with  it,  will  now  be  briefly  reviewed.  Jay- 
lor  vs.  Bradley,  39  N.  Y.  129,  100  Am  Dec.  415,  is  not  opposed. 
The  only  point  decided  in  that  case  was,  that  if  there  be  an  agree- 
ment to  let  a  farm  for  three  years  on  specified  terms,  the  plaintiff 
stipulating  to  occupy  and  work  the  farm,  and  to  divide  the  proceeds 
with  the  defendant,  the  owner,  and  the  latter  breaks  off  the  agree- 
ment, without  cause,  at  the  commencement  of  the  letting,  the 
plaintiff  may  recover  immediately  as  damages,  the  value  of  the  con- 
tract. This  proposition  is  entirely  consistent  with  the  views  main- 
t  aned  in  the  present  case,  though  they  are  dicta  in  the  case  not  easily 
reconcilable  with  the  result  reached  by  the  court.  Pp.  141,  142. 
Folk  vs.  Daly,  4  Daly,  411,  is  supposed  by  the  defendant  to  support 
his  views.  This  is  a  clear  mistake.  The  court  expressly  approves 
Moody  vs.  Lever ich  in  the  same  volume.  (P.  416.)  This  case  is 
most  distinct  and  emphatic  in  the  plaintiff's  favor.  Polk  vs.  Daly 
simply  argues  the  question  as  one  of  wages.  The  plaintiff  in  that 
case  tendered  his  services  before  the  time  for  his  employment  arrived, 
and  was  discharged.  (It  will  appear  hereafter  that  in  a  case  where 
a  servant  is  discharged  from  his  contract  before  the  time  of  service 
arrives,  he  has  an  election  to  wait  until  the  contract  day  arrives  and 
then  tender  his  services,  or  to  sue  at  once  for  damages.)  He  then 
left  the  city  of  New  York  and  remained  absent  until  the  whole 
period  had  expired,  making  no  efforts  to  obtain  employment.  The 
court  held  that  if  the  action  were  for  wages,  he  must  hold  himself 
in  readiness  to  render  the  service.  This  is  correct.  No  opinion 
was  expressed  upon  the  point  as  to  what  the  rule  would  have  been 
in  an  action  for  damages. 

As  far  as  any  authorities  are  opposed  to  the  theory  maintained 
in  the  present  case,  they  will  appear  to  rest  on  the  nisi  prius  case 
of  Gandell  vs.  Pontigny,  already  noticed.  Thus  in  Thompson  vs. 
Wood,  1  Hilt.  96,  there  is  a  dictum  of  lif  graham,  J.,  that  a  servant 
wrongfully  discharged  has  his  election  to  sue  for  wages  as  they 
become  due  from  time  to  time,  or  for  damages.  This  remark  that 
he  could  sue  for  wages  evidently  proceeds  on  the  discarded  doctrine 
of  "  constructive  service."  In  Huntington  vs.  The  Ogdenshurgh 
E.  R.  Co.,  33  How.  Pr.  416,  there  are  some  remarks  of  a  similar 
nature  by  Potter,  J.,  though  there  is  an  apparent  confusion 
between  a  claim  for  wages,  in  case  the  contract  is  carried  out,  and 
for  damages,  in  case  it  is  broken  off.  The  opinion  of  James,  J., 
as  reported  in  this  case  in  7  American  Law  Eegister  (N.  S.)  143, 
«»^T)pear8  to  be  distinct  in  its  adoption  of  the  doctrine  of  construe- 


534  Cases  02f  Agency.  [Book  Iv 

tive  service.  It  relies  on  a  case  in  Alabama  (  Fowler  I'S.  Armour, 
24  Ala.  194),  which  distinctly  holds  that  doctrine,  and  on  the 
dictum  of  Ingraham,  J.,  in  Thompson  vs.  Wood,  supra.  There 
are  two  or  three  other  cases  in  the  southern  and  western  states  that 
have  followed  Oandell  vs.  Pontiguy:  Armfield  vs.  Aash,  31  Miss. 
361;  Gordon  vs.  Brewster,  7  Wis.  355;  Booge  vs.  Pacific  R.  R.  Co., 
33  Mo.  212,  82  Am.  Dec.  160. 

This  doctrine  is,  however,  so  opposed  to  principle,  so  clearly 
hostile  to  the  great  mass  of  the  authorities,  and  so  wholly  irrecon- 
cilable to  that  great  and  beneficent  rule  of  law,  that  a  person 
discharged  from  service  must  not  remain  idle,  but  must  accept 
employment  elsewhere  if  ofiered,  that  we  cannot  accept  it. 
If  a  person  discharged  from  service  may  recover  wages,  or  treat 
the  contract  as  still  subsisting,  then  he  must  remain  idle  in  order 
to  be  always  ready  to  perform  the  service.  How  absurd  it  would 
be  that  one  rule  of  law  should  call  upon  him  to  accept  another 
employment,  while  another  rule  required  him  to  remain  idle  in 
order  to  recover  full  wages.  The  doctrine  of  "  constructive  ser- 
vice" is  not  only  at  war  with  principle,  but  with  the  rules  of 
political  economy,  as  it  encourages  idleness  and  gives  compensation 
to  men  who  fold  their  arms  and  decline  service,  equal  to  those  who 
perform  with  willing  hands  their  stipulated  amount  of  labor. 
Though  the  master  has  committed  a  wrong,  the  servant  is  not  for 
one  moment  released  from  the  rule  that  he  should  labor;  and  no  rule 
can  be  sound  which  gives  him  full  wages  while  living  in  voluntary 
idleness.  For  these  reasons,  if  the  plaintiff  was  discharged  after 
the  time  of  service  commenced,  she  had  an  immediate  cause  of 
action  for  damages,  which  were  prima  facie  a  sum  equal  to  the 
stipulated  amount,  unless  the  defendant  should  give  evidence  in 
mitigation  of  damages.     *     *     ♦ 

[The  learned  commissioner  then  considered  the  rule  to  be  fol- 
lowed in  case  the  defendant's  denial  of  the  contract  preceded  the 
time  for  entering  into  the  service,  expressing  the  opinion  that  the 
plaintiff  would  then  have  an  immediate  right  of  action.— This  is 
omitted,  as  it  was  not  concurred  in.] 

The  whole  result  of  the  discussion  may  now  be  summed  up.  If 
the  defendant  in  the  case  at  bar  repudiated  his  contract  with  the 
plaintiff  after  the  time  of  performance  had  arrived,  the  plaintiff 
had  an  action  for  damages.  Her  interview  with  the  defendant 
BufQciently  showed  her  readiness  to  perform.  Her  action  was  for 
damages  for  not  being  permitted  to  work,  and  not  for  wages;  and 


Chap.  IV]  Howard  vs.  Daly.  536 

the  defendant  might  show  aflirmatively,  and  by  way  of  mitigation 
of  damages,  that  she  had  opportunities  to  make  a  theatrical 
engagement  elsewhere,  which  she  did  not  accept.  "Without  such 
proof  she  was  entitled  to  recover  the  full  amount  of  the  compensa- 
tion stipulated  in  the  contract. 

On  the  other  hand,  if  the  defendant  rejected  the  services  of  the 
plaintiil  lefore  the  time  for  performance  arrived,  she  had  an 
election  either  to  consider  his  act  as  a  breach  of  an  implied  con- 
tract with  her  to  take  her  into  his  service,  and  bring  an  immediate 
action;  or  to  wait  till  the  appointed  day  arrived,  and  then  be  in 
readiness  to  render  her  services.  Her  election  will  be  evidenced 
by  her  acts.  Having  made  no  tender  of  her  services  at  the 
appointed  day,  the  presumption  is  that  she  considered  the  act  of 
repudiation  by  the  defendant  as  final,  and  now  brings  her  action 
for  damages.  Her  complaint  in  the  action  and  the  evidence  taken 
at  the  trial  are  suflBcient  to  establ.sh  such  a  claim.  Her  damages 
are,  as  in  the  other  hypothesis,  prima  facie  the  entire  amount  of 
her  compensation,  unless  proof  was  offered  in  mitigation  of  dam- 
ages, which  was  not  done.  In  either  aspect  of  the  case  the  verdict 
and  judgment  were  right. 

My  brethren  concur  with  me  upon  the  first  ground  discussed  in 
this  opinion,  without  expressing  their  views  upon  the  correctness 
of  the  rule  laid  down  in  Hoclister  vs.  De  La  Tour  and  kindred 
cases. 

The  judgment  of  the  court  below  mnst  be  affirmed. 

All  concur. 

Judgment  affirmed. 


(84  Alabama,  508,  5  Am.  St.  Kep.  387.) 

LIDDELL  vs.  CHIDESTER. 

fSupreme  Court  of  Alabama,  December,  18S7.J 

Action  to  recover  for  services   rendered.      Plaintiff  recovered 
below. 

Arlington  &  Graham,  for  the  appellant, 
Troy,  Tompkins  &  London,  contra. 

Stone,  C.  J.     The  most  important  inquiry  in  this  case,  alike  of 
law  and  of  fact,  was  whether  Chidester  was  employed  by  Liddell  to 


636  Cases  on  Agency.  [Book  IV 

perform  a  year's  service  for  one  thonsand  dollars,  to  be  paid  in 
gross,  or  to  be  paid  in  monthly  installments.  If  the  former,  then 
the  recovery  and  enforcement  of  the  judgment  for  a  part  of  the 
demand  in  June,  1886,  is  a  complete  defense  and  bar  to  this  action, 
and  nothing  should  be  recovered.  This,  under  the  well-known 
principle  that  a  plaintiU  cannot  split  up  a  single  cause  of  action 
into  two  or  more  suits;  and  if  he  does  so,  and  recovers  a  part  of 
his  demand,  this  is  a  waiver  of,  and  a  bar  to  the  residue  of  his 
claim,  be  it  much  or  little.  Oliver  vs.  Holt,  11  Ala.  574,  G6  Am. 
Dec.  228;  O'Neal  vs.  Brown,  21  Ala.  482;  >S'.  <&  N.  R.  R.  Co.  vs. 
Eenlein,  56  Id.  368;  Wharton  vs.  King,  69  Id.  365. 

If,  on  the  other  hand,  the  wages  were  due  and  demandable  at 
the  end  of  each  month,  then  the  recovery  of  one  installment, 
unreversed,  is  a  complete  answer  to  and  preclusion  of  all  defense  to 
the  merits  which  were  or  could  be  pleaded  to  such  second  suit. 
Rakes  vs.  Pope,  7  Ala.  161;  3  Brickell's  Digest,  p.  580,  sec.  75  et 
seq. ;  Wharton  on  Civil  Evidence,  sec.  758;  Gardner  vs.  Buckhee,  3 
Cow.  120;  15  Am.  Dec.  256. 

The  contract  in  this  case  was  by  telegraphic  correspondence.  Lid- 
dell's  offer  was:  **  If  one  thousand  dollars  a  year  is  an  inducement, 
come  immediately.  Answer."  Chidester's  acceptance  was:  "Will 
accept  one  thousand  dollars  a  year."  These  communications, 
unexplained,  show  a  single  contract  for  a  year,  the  wages  to  be  one 
thousand  dollars  in  gross. 

There  was  testimony  that  up  to  the  time  of  Chidester's  discharge 
his  wages  were  paid  to  him  monthly;  but  the  testimony  on  this 
subject  was  somewhat  in  conflict,  r'artridge  vs.  Forsyth,  29  Ala,. 
200;  Com.  Fire  Itis.  Co.  vs.  Capital  City  Ins.  Co.,  81  Id.  320,  60 
Am.  Rep.  1G2.       *      *      ♦ 

It  is  settled  in  this  state,  by  many  decisions,  that  when  Chides- 
ter  was  discharged  he  had  the  option  of  one  of  three  remedies,  if 
the  discharge  was  wrongful.  1.  He  could  have  elected  to  treat  the 
contract  as  rescinded,  and  sue  on  a  quantiim  meruit  for  any  labor 
he  may  have  performed.  2.  He  could  have  sued  at  once  for  an 
entire  breach  of  the  contract  by  the  defendant,  in  which  event  he 
would  have  been  entitled  to  recover  all  damages  he  suffered  up  to 
the  trial,  not  exceeding  the  entire  wages  he  could  have  earned 
under  the  contract;  or  3.  He  could  have  waited  until  his  wages 
would  mature  under  the  terms  of  the  contract,  and  sue  and  recover 
as  upon  performance  on  his  part.  Each  of  these  alternative  rights, 
as  we  have  seen,  was  dependent  on  his  fixing  on  Liddell  the  fault 


Ohap.  IV]  LiDDELL   vs.    CUIDESTEB.  637 

of  his  discharge.  Strauss  vs.  Meertief,  64  Ala.  299;  38  Am.  Rep. 
8;  Davis  vs,  Ayers,  9  Ala.  292;  Ramey  vs.  Ilolcombe,  21  Id.  567; 
Fotoler  vs.  Armour,  24  Id.  194;  Holloimy  vs.  Talbot,  70  Id.  389; 
Willinso?i  vs.  Black,  80  Id.  329;  3  Wait's  Actions  and  Defenses, 
606.  And  when  wages  are  payable  in  installments,  suits  may  be 
brought  on  the  several  installments  as  they  mature;  Davis  vs. 
Preston,  6  Ala.  83.      *      •      • 

Affirmed. 


(82  Georgia  392,  6  L.  R.  A.  405.) 

GEIGGS  vs.  SWIFT. 

(Supreme  Court  of  Georgia,  July,  18S9.J 

The  firm  of  George  P.  Swift  &  Son  hired  Griggs  for  one  year 
from  Sept.  1,  1886,  at  ^50  per  month  and  board.  The  son  died  in 
November,  and  on  January  1  following  the  surviving  member  dis- 
charged Griggs  without  cause.  He  brought  this  action  against 
the  survivor  to  recover  wages  and  expenses  for  board  from  Jan.  1 
to  July  1,  when  he  found  other  employment.  Judgment  below 
for  defendant. 

T.  W.  Grimes  and  Feabody,  Brannon  &  Hatcher,  for  plaintiff 
in  error. 

McNeill  <&  Levy,  for  defendant  in  error. 

Bleckley,  C.  J.  (After  stating  the  facts.)  From  the  very 
nature  of  a  contract  for  the  rendition  of  personal  services  to  a 
partnership  in  its  current  business,  where  nothing  is  expressed  to 
the  contrary,  both  parties  should  be  regarded  as  having  by  impli- 
cation intended  a  condition  dependent  on  the  one  hand,  upon  the 
life  of  the  employe,  and  on  the  other,  upon  the  life  of  the  partner- 
ship, provided  the  death  in  either  case  was  not  voluntary.  To 
this  eHect  is  the  text  of  Wood  on  Master  and  Servant,  §  163: 
"Where  a  servant  is  employed  by  a  firm,  a  dissolution  of  the  firm 
dissolves  the  contract,  so  that  the  servant  is  absolved  therefrom; 
but  if  the  dissolution  results  from  the  act  of  the  parties,  they  are 
liable  to  the  servant  for  his  loss  therefrom;  but  if  the  dissolution 
results  from  the  death  of  a  member  of  the  firm,  the  dissolution 
resulting  by  operation  of  law  and  not  from  the  act  of  the  parties. 


538  Cases  oiir  Agency.  [Book  IV 

no  action  for  damages  will  lie.  *  *  *  So  if  a  firm  consists  of 
two  or  more  persons  and  one  or  more  of  tliem  dies,  but  the  firm  is 
not  thereby  dissolved,  the  contract  still  subsists,  because  one  or 
more  of  his  partners  is  still  in  the  firm  and  this  is  so  even  though 
other  persons  are  taken  into  the  firm.  The  test  is  whether  the 
firm  is  dissolved.  So  long  as  it  exists,  the  contract  is  in  force, 
but  when  it  is  dissolved,  the  contract  is  dissolved  with  it,  and  the 
question  as  to  whether  damages  can  be  recovered  therefor  will 
depend  upon  the  question  whether  the  dissolution  resulted  from 
the  act  of  God,  the  operation  of  law,  or  the  act  of  the  parties." 

Mr,  Wood's  reference  is  to  two  Scotch  cases  which  we  have  not 
seen,  but  the  rule  he  deduces  from  them  is  so  reasonable  that  we 
feel  warranted  in  accepting  it  as  law.     See  also  Taslcer  vs.  Shqjlierd, 

6  H.  &  N.  675.  As  to  the  death  of  a  person  not  a  partner,  but  a 
sole  employer,  [the  rule  is  the  same.]     See  Yerrington  vs.  Greene, 

7  R.  I.  589,  84  Am.  Dec.  578;  Wood,  Mas.  &  Ser.  §§  95,  158. 
The  case  of  Fereira  vs.  Say  res,  5  Watts  &  S.  iPa.)  210,  40  Am. 
Dec.  496,  is  apparently  in  conflict  with  the  text  of  Wood  as  above 
quoted,  but  we  are  satisfied  to  abide  by  the  rule  laid  down  in  Wood, 
though  it  be  at  the  expense  of  differing  with  the  learned  court 
of  Pennsylvania  by  whom  the  last  named  case  was  decided.  The 
contract  upon  which  the  plaintiff's  suit  was  founded  having  become 
impossible  of  performance  by  reason  of  death,  he  had  no  right  to 
recover  upon  the  same  against  the  surviving  partner  for  services 
never  actually  rendered,  and  there  was  no  error  in  granting  a 
non-suit.  Of  course  the  claim  for  board  was  on  the  same  footing 
as  that  for  wages.  Affirmed. 

Note.    Compare  with  Hughes  vs.  Gi'oss,  166  Mass.  61;  55  Am.  St.  Rep.  878, 


(37  Ohio  State,  396,  41  Am.  Bet.  528.) 

BELL  vs.  McCONNELL. 

(Supreme  Court  of  Ohio,  January,  1S81.) 

Action  for  the  recovery  of  commissions  as  a  broker.     The  opin- 
ion states  the  facts. 

R.  B.  Murray,  for  plaintiff  in  error. 
Qeorge  F.  Arrel,  for  defendant  in  error. 

McIlvainb,  J.     This  case  presents  the  single  question:    Can  a 
real  estate  broker,  who  assumes  to  aid  both  contracting  parties  in 


Chap.  IV]  Bell  vs.  McConnell.  5i9 

making  an  exchange  of  real  estate,  recover  compensation  for  hii 
services  from  either,  upon  an  express  promise  to  pay  in  a  case 
where  each  principal  had  full  knowledge  of  and  assented  to  the 
double  employment? 

It  has  been  decided  (i^w/;;?  vs.  Sampson,  16  Gray,  398,  77  Am.  Dec. 
416;  and  Siegel  vs.  Gould,  7  Lans.  177),  and  is  not  doubted  that  such 
broker  may  recover  from  both  or  either  where  his  employment  was 
merely  to  bring  the  parties  together;  and  it  is  equally  clear,  both 
upon  principle  and  authority,  that  in  case  of  such  double  employ- 
ment he  can  recover  from  neither,  where  his  employment  by 
either  is  concealed  from  or  not  assented  to  by  the  other.  Several 
reasons  may  be  given  for  this  rule.  In  law  as  in  morals,  it 
may  be  stated  that  as  a  principle  no  servant  can  serve  two  masters, 
for  either  he  will  hate  the  one  and  love  the  other  or  else  he  will 
hold  to  the  one  and  despise  the  other.  Luke,  16:13.  Unless  the 
principal  contracts  for  less,  the  agent  is  bound  to  serve  him  with 
all  his  skill,  judgment  and  discretion.  The  agent  cannot  divide 
this  duty  and  give  part  to  another.  Therefore  by  engaging  with 
the  second  he  forfeits  his  right  to  compensation  from  the  one  who 
first  employed  him.  By  the  second  engagement,  the  agent,  if  he 
does  not  in  fact  disable  himself  from  rendering  to  the  first  employer 
the  full  quantum  of  service  contracted  for,  at  least  tempts  himself 
not  to  do  so.  And  for  the  same  reason  he  cannot  recover  from  the 
second  employer  who  is  ignorant  of  the  first  engagement.  And  if 
the  second  employer  has  knowledge  of  the  first  engagement,  then 
both  he  and  the  agent  are  guilty  of  the  wrong  committed  against 
the  first  employer,  and  the  law  will  not  enforce  an  executory  con- 
tract entered  into  in  fraud  of  the  right  of  the  first  employer.  It 
is  no  answer  to  say  that  the  second  employer  having  knowledge  of 
the  first  employment  should  be  held  liable  on  his  promise,  because 
he  could  not  be  defrauded  in  the  transaction.  The  contract  itself 
is  void  as  against  public  policy  and  good  morals  and  both  parties 
thereto  being  in  pari  delicto,  the  law  will  leave  them  as  it  finds 
them.     Ex  dolo  malo  non  oritur  actio. 

The  non-liability  of  the  second  employer  having  knowledge  of  the 
first  employment  has  been  maintained  in  the  following  cases: 
Farnsworth  vs.  Hemmer,  1  Allen,  494,  79  Am.  Dec.  756;  Walker 
vs.  Os(jood,  98  Mass.  348,  93  Am.  Dec.  168;  Smith  vs.  Townsend, 
109  Id.  500;  Rice  vs.  Wood,  113  Id.  133,  8.  c.  18  Am. 
Eep.  459,  ante,  p.  12;  Bolhnan  vs.  Loomis,  41  Conn.  581; 
Everhart  vs.  Searle,  71  Penn.  St.  256;  Morrison  vs.   Thompson, 


540  Cases  on  Agency.  [Book  IV 

L.  E.,  9  Q.  B,  480.  But  in  each  of  these  cases  it  is  strongly  inti- 
mated, if  not  distinctly  announced,  that  a  recovery  may  be  had  by 
Buch  agent  when  he  acted  with  the  knowledge  and  consent  of  both 
principals.  In  Lt/7ich  vs.  Fallon,  11  E.  I.  311;  s.  o.,  23  Am.  Eep. 
458,  the  same  general  doctrine  is  held  and  it  is  said  that  a  broker, 
acting  at  once  for  both  vendor  and  purchaser,  assumes  a  double 
agency  disapproved  of  by  the  law,  and  which  if  exercised  without 
the  full  knowledge  and  free  consent  of  both  parties  is  not  to  be 
tolerated.  The  same  in  Meyer  vs.  Hanchett,  43  Wis,  246,  wherein 
the  question  whether  such  double  agency  is  consistent  with  public 
policy,  though  exercised  with  the  consent  of  both  parties,  is  left 
undecided,  but  it  is  decided  that  mere  knowledge  of  such  double 
agency  without  actual  consent  on  the  part  of  the  principals  will 
not  entitle  the  agent  to  commissions. 

The  validity  of  such  contracts  of  double  agency  where  all  the 
principals  were  fully  advised  and  consented  to  the  double  employ- 
ment, was  more  directly  before  the  courts  and  afl&rmed  in  the 
following  cases:  Rome  vs.  Stevens,  35  N.  Y.  Super.  Ct.  189,  53 
N.  Y.  Q2\',  Alexander  vs.  N.  W.  C.  University,  57  Ind.  466;  JosZm 
vs.  Cowee,  56  N.  Y.  626;  Adams  Mining  Co.  vs.  Senter,  26  Mich. 
73;  Fitzsimmons  vs.  Southwestern  Ex.  Co.,  40  Ga.  830,  s.  c.  2  Am. 
Eep.  577;  Rolling  Stock  Co.  vs.  Railroad,  34  Ohio  St.  450;  Pngsley 
vs.  Murray,  4  E.  D.  Smith,  245.  See  also  note  by  Bennett  to 
Lynch  vs.  Fallon,  16  Am.  L.  Eeg.  333. 

Raisin  vs.  Clarh,  41  Md.  158,  20  Am.  Eep.  66,  holds  the  contrary 
doctrine,  if  knowledge  and  consent  on  the  part  of  the  first  employer 
is  to  be  regarded  as  fully  proved.  Other  cases  bearing  more  or  less 
directly  on  the  point  might  be  cited;  but  enough  are  given  to  show  a 
want  of  harmony  in  the  decisions;  yet  we  think  the  decided  current 
of  authority  is  in  favor  of  the  validity  of  such  contracts  where  the 
consent  of  both  principals  to  such  double  agency  is  clearly  proved. 

We  admit  that  all  such  transactions  should  be  regarded  with 
suspicion;  but  where  full  knowledge  and  consent  of  all  parties 
interested  are  clearly  shown  we  know  of  no  public  policy,  or  prin- 
ciple of  sound  morality  which  can  be  said  to  be  violated.  It  seems 
to  us  rather  that  public  policy  requires  that  contracts  fairly  entered 
into  by  parties  competent  to  contract  should  be  enforced  where  no 
public  law  has  been  violated  and  no  corrupt  purpose  or  end  ia 
sought  to  be  accomplished.  True,  such  agent  may  not  be  able  to 
serve  each  of  his  principals  with  all  his  skill  and  energy.  He  may 
not  be  able  to  obtain  for  his  vendor  principal  the  highest  price  which 


Chap.  IV]  Bell  vs.  McConnbll.  641 

could  be  obtained,  or  for  the  purchaser  the  lowest  price  for  which  it 
could  be  purchased.  But  he  can  render  to  each  a  service  entirely  free 
from  falsehood  and  fraud;  a  fair  and  valuable  service  in  which  his 
best  judgment  and  his  soundest  discretion  are  fully  and  freely 
exercised.  And  in  such  case,  such  service  is  all  that  either  of  his 
principals  contracted  for.  Undoubtedly  if  two  persons  desire  to 
negotiate  an  exchange  or  a  bargain  and  sale  of  property,  they  may 
agree  to  delegate  to  a  third  person  the  power  to  fix  the  terms,  and 
no  suspicion  of  a  violated  public  policy  would  arise.  It  may  be 
said  that  such  third  person  is  an  arbitrator  chosen  to  settle  differ- 
ences between  his  employers,  an  agency  or  office  greatly  favored  in 
the  law.  And  so  it  is.  But  what  is  the  distinction  between  that 
employment,  and  the  one  in  the  present  case,  which  should  cause 
the  law  to  favor  the  former  and  abhor  the  latter?    I  can  see  none. 

True,  in  the  case  put,  the  contracting  parties  deal  directly  with 
each  other,  and  in  the  case  at  bar  their  minds  meet  through  the 
medium  of  a  third  person  in  whose  judgment  and  discretion  they 
mutually  repose  confidence.  His  judgment  and  discretion  are  in- 
voked by  each  to  aid  in  fixing  the  terms  of  a  contract  between  them. 
And  after  the  terms  are  thus  adjusted  through  the  aid  of  their 
mutual  agent  and  ratified  by  the  parties,  in  the  free  exercise  of 
their  own  volitions,  to  hold  that  the  relation  between  such  agent 
and  either  of  his  principals  is  in  violation  of  a  sound  public  policy 
supposed  to  rest  on  some  moral  abstraction  would  be  a  refinement 
in  legal  ethics  too  subtle  for  my  comprehension. 

Of  course  to  relieve  such  double  agent  from  suspicion  that  incon- 
sistent duties  have  been  assumed,  which  prima  facie  will  be  pre- 
sumed, it  is  necessary  that  it  should  appear  that  knowledge  of  every 
circumstance  connected  with  his  employment  by  either,  should  be 
communicated  to  the  other  in  so  far  as  the  same  would  naturally 
affect  this  action;  but  when  that  is  done  and  free  assent  is  given  by 
each  principal  to  the  double  relation  of  the  agent,  the  right  of  such 
agent  to  compensation  cannot  be  denied  on  any  just  principle  of 
morals  or  of  law. 

Judgment  of  District  Court  affirmed. 

LoNQWOETH,  J.,  dissented. 


542  Cases  on  Agexct.  [Book  IV 

II. 

agent's  right  to  reimbuksement  and  indemnity. 


(5  BiNNEY,  441,  1  Am.  Lead.  Cas.  856.) 

D'AKCY  vs.  LYLE. 

f Supreme  Court  of  Pennsylvania,  March,  181S.J 

Plaintiff  as  agent  of  defendant  had  been  employed  to  recover 
goods  of  defendant  from  Suckley  &  Co.  at  Cape  Francois,  San 
Domingo.  He  secured  the  goods  by  judicial  proceedings  and 
accounted  to  defendant.  Afterwards  the  matter  Avas  reopened,  and 
plaintiff  was  given  the  alternative  of  paying  a  large  sum  because  of 
his  having  obtained  these  goods  or  engage  in  personal  combat  to 
the  death  with  the  claimant  Richardson.  He  therefore  confessed 
judgment  for  $3,000,  which  it  was  claimed  was  the  value  of  the 
goods,  and  the  sum  he  afterwards  paid.  The  action  was  for  reim- 
bursement from  defendant.  Verdict  for  plaintiff  and  defendant 
moved  for  a  new  trial. 

Tod  and  Raiule,  for  the  motion. 
Hare  and  Tilghman,  contra. 

Tilghman,  0.  J.  This  is  one  of  those  extraordinary  cases  aris- 
ing out  of  the  extraordinary  situation  into  which  the  world  has  been 
thrown  by  the  French  revolution.  If  the  confession  of  judgment  by 
the  plaintiff  had  been  voluntary ,  it  would  have  lain  on  him  to  show 
that  the  $3,000  were  justly  due  from  the  defendant  to  Richardson, 
or  the  persons  for  whom  he  acted,  or  they  had  a  lien  on  the  goods 
of  the  defendant  to  that  amount.  But  the  confession  of  judgment 
was  heyond  all  doubt  extorted  from  the  plaintiff  by  duress,  and  he 
did  not  yield  to  fears  of  which  a  man  of  reasonable  firmness  need 
be  ashamed.  The  material  fact  on  which  this  case  turns  is, 
whether  the  transactions  between  the  plaintiff  and  Richardson, 
were  on  any  private  account  of  the  plaintiff,  or  solely  on  account  of 
the  defendant.  That  was  submitted  to  the  jnry,  and  we  must  now 
take  for  granted  that  the  proceedings  at  the  Cape  against  the 
plaintiff,  were  in  consequence  of  his  having  received  possession  of 
the  defendant's  goods  from  Suckley  &  Co.  I  take  the  law  to  be  as 
laid  down  by  Heineccius,  Turnbull's  Heineccius,  c.  13,  p.  269, 
270,    and  by  Erskine  in    his  Institutes,   2    Erskine's  Inst.   534, 


Chap.  IV]  D'Arct  vs.  Ltle.  643 

that  damages  incurred  by  the  agent  in  the  course  of  the  manage- 
ment, of  the  principal's  affairs,  or  in  consequence  of  such  manage- 
ment, are  to  be  borne  by  the  principal. 

It  is  objected  that  at  the  time  when  judgment  was  rendered 
against  the  plaintiff,  he   was  no  longer  an   agent,  having  long 
before  made  up  his  accounts,  and  transmitted  the  balance  to  the 
defendant.     But  this  objection  has  no  weight,  if  the  judgment 
was  but  the  consummation  of  the  proceedings  which  were  com- 
menced during  the  agency.     As  such  I  view  them,  and  I  make  no 
doubt  that  they  were  so  considered  by  the  jury.     It  is  objected 
again,  that  no  man  is  safe  if  he  is  to  be  responsible  to  an  unknown 
amount,  for  any  sums  which  his  agent  may  consent  to  pay,  in  con- 
sequence of  threats  of  unprincipled  tyrants  in  foreign  countries. 
Extreme  cases  may  be  supposed,  which  it  will  be  time  enough  to 
decide  when  they  occur.     I  beg  it  be  understood,   that  I  give  no 
opinion  on  a  case  where  an  agent  should  consent  to  pay  a  sum  far 
exceeding  the  amount  of  the  property  in  his  hands.     This  is  not  the 
present  case,  for  the  property  of  the  defendant,  in  the  hands  of 
the  plaintiff  in  1804,  was  estimated  at  $3,000.     The  cases  cited  by 
the  defendant  show,  that  if  the  agent  on  a  journey  on  business  of 
his  principal,  is  robbed  of  his  own  money,  the  principal  is  not 
answerable.     I  agree  to  it,  because  the  carrying  of  his  own  money 
was  not  necessarily  connected  with  the  business  of  his  principal. 
So  if  he  receives  a  wound,  the  principal  is  not  bound  to  pay  the 
expenses  of  his  cure,  because  it  is  a  personal  risk  which  the  agent 
takes  upon  himself.     One  of  the  defendant's  cases  was,  that  where 
the  agent's  horse  was  taken  lame  the  principal  was  not  answer- 
able.    That  I   think   would  depend  upon   the   agreement  of  the 
parties.     If  A  undertakes  for  a  certain  sum,  to  carry  a  letter  for  B 
to  a  certain  place,  A  must  find  his  own  horse  and  B  is  not  answer- 
able for  any  injury  which  may  befall  the  horse  in  the  course  of  the 
journey.     But  if  B  is  to  find  the  horse,  he  is  responsible  for  the 
damage.     In  the  case  before  us,  the  plaintiff  has  suffered  damage 
without  his  own  fault,  on  account  of  his  agency,  and  the  jury  have 
Indemnified  him  to  an  amount,  very  little  if  at  all  exceeding  the 
property  in  his  hands,  with  interest  and  costs.     I  am  of  opinion 
that  the  verdict  should  not  be  set  aside. 
Yeates,  J.,  concurred;  Beackekridgb,  J.,  dissented. 

Note. — Damages  incurred  by  the  agent  without  his  fault  in  the  honest 
discharge  of  the  principal's  business  must  be  borne  by  the  principaL  Mail- 
la-nd  vs.  Martin  (1878)  86  Penn,  St.  120.     It  is  the  right  of  an  agent  to  be 


644  Oases  on  Aqekct.  [Book  IV 

re-imbuTPed  all  his  advances,  expenses  and  disbursements  made  in  the 
course  of  his  a,c:ency  on  account  of  or  for  the  beneSt  of  his  principal. 
Evfner  vs.  Hewitt  (1871),  7  W.  Va.  585.  In  Blhb  vs.  Alleii,  149  U.  S.  481, 
it  is  said:  "  It  is  a  well-established  principle,  which  pervades  the  whole  law 
of  principal  and  agent,  that  the  principal  is  bound  to  indemnify  the  agent 
against  the  consequences  of  all  acts  done  by  him  in  the  execution  of  his 
agency,  or  in  pursuance  of  the  authority  conferred  upon  him,  when  the 
actions  or  transactions  are  not  illegal.  Speaking  generally,  the  agent  has  the 
right  to  be  reimbursed  for  all  his  advances,  expenses  and  disbursements 
incnrred  in  the  course  of  the  agency,  made  on  account  of  or  for  the  benefit  of 
his  principal,  when  such  advances,  expenses  and  disbursements  are  reason- 
able, and  have  been  properly  incurred  and  paid  without  misconduct  on  the 
part  of  the  agent.  If,  in  obeying  the  instructions  or  orders  of  the  principal, 
the  agent  does  acts  which  he  does  not  know  at  the  time  to  be  illegal,  the 
principal  is  bound  to  indemnify  him,  not  only  for  expenses  incurred,  but  also 
for  damages  which  he  may  be  compelled  to  pay  to  third  parties.  The 
exception  to  this  rule  is  where  the  transaction  for  which  the  agent  is 
employed  is  illegal  or  contrary  to  good  morals  and  public  policy.  Addison 
on  Contracts,  §  636;  Story  on  Agency,  §§  339,  840,  and  cases  cited  in  notes. 
Thus  in  Beach  vs.  Branch,  57  Ga.  362,  where  an  agent  had  sold  cotton  for 
account  of  another,  and  was  obliged  to  refund  the  purchase  money  to  the 
purchaser  on  account  of  false  packing  by  the  principal,  he  was  allowed  to 
recover  the  amount  so  paid  from  the  principal. 

It  is  another  general  proposition,  in  respect  to  the  relation  between  prin- 
cipal and  agent,  that  a  request  to  undertake  an  agency  or  employment,  the 
proper  execution  of  which  does  or  may  involve  the  loss  or  expenditure  of 
money  on  the  part  of  the  agent,  operates  as  an  imijlied  request  on  the  part 
of  the  principal,  not  only  to  incur  such  expenditure,  but  also  as  a  promise 
to  repay  it.  So  that  the  employment  of  a  broker  to  sell  property  for  future 
delivery  implies  not  only  an  undertaking  to  indemnify  the  broker  in  respect 
to  the  execution  of  his  agency,  but  likewise  implies  a  promise  on  the  part 
of  the  principal  to  repay  or  reimburse  him  for  such  losses  or  expenditures 
as  may  become  necessary,  or  may  result  from  the  performance  of  his  agency. 
Bayley  vs.  Wilkins,  7  C.  B.  886;  Smith  va.  Undo,  5  C.  B.  N.  S.,  587." 


Ohap.  V]  Patekson  vs.  Gandasequl  645 


CHAPTER    V. 

THE  DUTIES  AND  LIABILITIES  OF  THE  PRINCIPAL  TO  THIRD 

PERSONS. 


I. 

LIABILITY  OF  PRINCIPAL  IN  CONTRACT. 

1.   Undisclosed  Principals. 


( 15  East,  62,  2  Smith's  Lead.  Gas.  342.) 

PATEESON  vs  GANDASEQUI. 

(English  Court  of  King's  Bench,  Hilary  Term,  18 IS.) 

Defendant  was  a  Spanish  merchant,  who,  being  in  London, 
employed  Larrazabal  &  Co.,  merchants  there,  to  buy  goods  for  him 
for  a  commission.  Larrazabal  &  Co.  requested  plaintiffs,  who 
were  dealers,  to  send  samples  to  the  counting  house  of  the  former, 
and  they  did  so.  Defendant  was  present  and  the  samples,  were 
handed  over  to  him.  He  selected  samples  of  such  goods  as  he 
wanted,  obtained  terms  and  prices  and  went  away.  He  afterwards 
instructed  L.  &  Co.  to  buy  large  quantities  for  him  and  they  sent 
written  orders  to  plaintiffs  for  the  goods,  signed  by  themselves. 
Plaintiff  sold  the  goods  on  the  credit  of  Larrazabal  &  Co.,  made 
the  invoices  to  them  and  charged  to  them  the  goods.  Larrazabal 
&  Co.  charged  defendant  with  the  amount  on  their  books.  Before 
the  term  of  credit  had  expired,  Larrazabal  &  Co.  became  insolvent, 
and  plaintiffs  sought  to  hold  defendant  liable.  On  the  trial.  Lord 
Ellenboeough,  C.  J.,  directed  a  non-suit  on  the  ground  that 
plaintiff  had  dealt  solely  with  Larrazabal  &  Co.  A  rule  to  show 
cause  why  a  new  trial  should  not  be  granted  was  then  obtained. 

The  Attorney  Oeneral,  Marry  ait  and  Littledale,  contra, 
Oarroio,  Park  and  Ricliardson,  for  the  new  trial. 

Lord  Ellenboeough,  C.  J.     The  court  have  not  the  least 
35 


646  Oases  on  Agency.  [Book  IV 

doubt  that  if  it  distinctly  appeared  that  the  defendant  was  the 
person  for  whose  use  and  on  whose  account  the  goods  were  bought, 
and  that  the  plaintiffs  knew  that  fact  at  the  time  of  the  sale,  there 
would  not  be  the  least  pretence  for  charging  the  defendant  in  this 
action.  But  the  doubt  is,  whether  that  does  sufficiently  appear  by 
the  evidence.  It  appears  that  the  defendant  was  present  at  the 
counting  house  of  Larrazabal,  where  one  of  the  plaintiffs  had  come 
by  appointment,  and  in  his  presence  inspected  and  selected  such 
of  the  articles  as  he  required;  and  the  goods  were  afterwards 
ordered  by  Larrazabal  &  Co.,  credit  given  to  them,  and  the 
invoices  made  out  in  their  name  and  sent  to  them.  The  question 
is,  whether  all  this  was  done  with  a  knowledge  of  the  defendant 
being  the  principal?  The  law  has  been  settled  by  a  variety  of 
cases  that  an  unknown  principal,  when  discovered,  is  liable  on  the 
contracts  which  his  agent  made  for  him;  but  that  must  be  taken 
with  some  qualification,  and  a  party  may  preclude  himself  from 
recovering  over  against  the  principal,  by  knowingly  making  the 
agent  his  debtor.  It  certainly  appeared  to  me  at  the  trial  that 
the  plaintiffs  knew  of  the  defendant  being  the  principal,  and  had 
elected  to  take  Larrazabal  &  Co.  as  their  debtors,  or  I  should  not 
have  non-suited  the  plaintiffs;  but  as  there  may  perhaps  be  a  doubt 
upon  the  evidence,  whether  the  plaintiffs  had  a  perfect  knowledge 
of  that  fact,  it  may  be  as  well  to  have  it  considered. 

Bayley,  J.  There  may  be  a  particular  course  of  dealing  with 
respect  to  trade  in  favor  of  a  foreign  principal,  that  he  shall  not  be 
liable  in  cases  where  a  home  principal  would  be  liable;  that  would 
be  a  question  for  the  jury.  I  have  generally  understood  that  the 
seller  may  look  to  the  principal  where  he  discovers  him,  unless  he 
has  abandoned  his  right  to  resort  to  him.  1  agree  that  where  the 
seller  knows  the  principal  at  the  time,  and  yet  elects  to  give  credit 
to  the  agent,  he  must  be  taken  to  have  abandoned  such  right,  and 
cannot,  therefore,  afterwards  charge  the  principal.  I  think  it 
should  be  reconsidered  in  this  case  whether  the  plaintiffs  did  so. 

Geose,  J.  and  Le  Blanc,  J.,  to  the  same  effect. 

New  trial  granted. 

Note. — See  following  casea. 


Chap.  V]  Addison  vs.  Grandasequi.  647 

(4  Taunton,  573,  2  Smith's  Lead.  Oas.  346.) 

ADDISON  vs.  GANDASEQUL 

(English  Court  of  Common  Pleas,  Trinity  Term,  ISli.J 

This  case,  which  is  usnally  cited  with  the  preceding  was  sub- 
stantially like  it,  except  that  defendant  was  more  active  in  agree- 
ing upon  prices  and  credit.  Lord  Mansfield,  C.  J.,  left  it  to  the 
jury  to  say  whether  plaintiff  sold  the  goods  to  Larrazable  &  Co.  or 
to  defendant;  whether  this  were  the  common  case  of  a  merchant 
here  buying  for  his  correspondent  abroad,  on  which  he  charged  a 
commission,  or  whether  it  was  the  case  of  a  factor  buying  goods 
for  his  principal;  and  the  jury  found  for  the  defendant.  A  motion 
for  a  new  trial  was  denied,  Lord  Mansfield,  C.  J.,  who  delivered 
the  opinion  saying:  **  "We,  who  are  called  on  to  set  aside  this  ver- 
dict, must,  in  order  thereto,  say  on  this  evidence,  that  Larrazable 
only  was  not  to  be  the  debtor,  but  that  the  defendant  also,  •  • 
was  to  be  liable;  but  we  can  find  no  evidence  to  warrant  us  in  that 
conclusion." 

Note. — See  following  cases. 


( 9  Barnwall  and  Creswell,  78,  2  Smith's  Lead.  Oas.  351.) 

THOMPSON  vs.  DAVENPORT. 

CEnglish  Court  of  King's  Bench,  Hilary  Term,  1829. J 

Thompson,  who  lived  in  Dumfries,  Scotland,  directed  his  Liver- 
pool agent,  McCune,  to  buy  certain  goods  for  him.  McCune 
bought  them  of  Davenport  &  Co.,  informing  the  latter  that  he  was 
buying  the  goods  for  a  principal  but  not  stating  who  the  principal  was. 
Davenport  &  Co.  charged  the  goods  to  McCune,  who  was  then  in 
good  credit,  and  the  latter  charged  them  to  Thompson  who  did 
not  know  of  whom  McCune  bought  them.  Before  the  time  for 
payment  arrived  McCune  became  insolvent,  and  this  action  was 
brought  to  charge  Thompson  as  his  principal.  The  court  below 
(the  recorder)  instructed  the  jury  that  if  plaintiffs  knew,  at  the 
time   of  the  sale,  that  defendant  was  the  principal,  the  verdict 


548  Oi-SES  ON  Agency.  [Book  IV 

Bhould  be  for  defendant,  bnt  if  they  did  not  then  know  who  the 
principal  was,  so  as  to  have  the  opportunity  to  elect  between  the 
principal  and  the  agent,  then  they  should  find  for  the  plaintiffs. 
Verdict  for  the  plaintiffs,  and  defendant  alleged  error. 

Joy,  for  plaintiffs  in  error. 
Fatteson,  contra. 

LOED  Tenterden,  0.  J.     I  am  of  opinion  that  the  direction 
given  by  the  learned  recorder  in  this  case  was  right,  and  that  the 
verdict  was  also  right.     I  take  it  to  be  a  general  rule,  that  if  a  per- 
son sells  goods  (supposing  at  the  time  of  the  contract  he  is  dealing 
with  a  principal),  bnt  afterwards  discovers  that  the  person  with 
whom  he  has  been  dealing  is  not  the  principal  in  the  transaction, 
but  agent  for  a  third  person,  thongh  he  may,  in  the  meantime,  have 
debited  the  agent  with  it,  he  may  afterwards  recover  the  amount 
from  the  real  principal;  subject,  however,  to  this  qualification,  that 
the  state  of  the  account  between  the  principal  and  the  agent  is  not 
altered  to  the  prejudice  of  the  principal.'    On  the  other  hand,  if  at 
the  time  of  the  sale,  the  seller  knows,  not  only  that  the  person  who 
is  nominally  dealing  with  him  is  not  principal,  but  agent,  and  also 
knows  who  the  principal  really  is,  and,  notwithstanding  all  that 
knowledge,  chooses  to  make  the  agent  his  debtor,  dealing  with  him 
and  him  alone,  then,  according  to  the  cases  of  Addison  vs.  Ganda- 
sequi,  4  Taunt.  574,  (ante,  p.  547)  and  Paterson  vs.  Gandasequi, 
15  East.  62  (ante,  p.  545),  the  seller  cannot  afterwards,  on  the 
failure  of  the  agent,  turn  round  and  charge  the  princ  pil,  having 
once  made  his  election  at  the  time  when  he  had  the  power  of  choos- 
ing between  the  one  and  the  other.      The  present  is  a  middle  case. 
At  the  time  of  the  dealing  for  the  goods,  the  plaintiffs  were  in- 
formed that  McKune,  who  came  to  them  to  buy  the  goods,  was 
dealing  for  another;    that  is,  that  he  was  an  agent,  but  they  were 
not  informed  who  the  principal  was.      They  had  not,  therefore,  at 
that  time,  the  means  of  making  their  election.      It  is  true,  that 
they  might,  perhaps,  have  obtained  those  means  if  they  had  made 
further  inquiry,  but  they  made  no  further  inquiry.      Not  knowing 
who  the  principal  really  was,  they  had  not  the  power,  at  that 
instant,  of  making  their  election.      That  being  so,  it  seems  to  me 
that  this  middle  case  falls,  in  substance  and  effect,  within  the  first 
proposition  which  I  have  mentioned,  the  case  of  a  person  not  known 

'  This  Btatement  of  the  rule  has  since  been  disapproved.     See  Irvine  vs. 
Watson,  post,  p.  550. 


Chap.  V]  Thompson  vs.  Davenport.  549 

to  be  an  agent;  and  not  within  the  second,  where  the  buyer  is  not 
merely  known  to  be  an  agent,  but  the  name  of  his  principal  is  also 
known.        *        ♦        * 

Batley,  J.  *  *  *  "Where  a  purchase  is  made  by  an  agent, 
the  agent  does  not,  of  necessity,  so  contract  as  to  make  himself  per- 
sonally liable;  but  he  may  do  so.  If  he  does  make  himself  personally 
liable,  it  does  not  follow  that  the  principal  many  not  be  liable  also, 
subject  to  this  qualification,  that  the  principal  shall  not  be  prejudiced 
by  being  made  personally  liable,  if  the  justice  of  the  case  is  that  he 
should  not  be  personally  liable.  If  the  principal  has  paid  the  agent, 
or  if  the  state  of  accounts  between  the  agent  and  the  principal 
would  make  it  unjust  that  the  seller  should  call  on  the  principal,' 
the  fact  of  payment,  or  such  a  state  of  accounts,  would  be  an 
answer  to  the  action  brought  by  the  seller  where  he  had  looked  to 
the  responsibility  of  the  agent.  But  the  seller,  who  knows  who 
the  principal  is,  and  instead  of  debiting  that  principal,  debits  the 
agents,  is  considered,  according  to  the  authorities  which  have  been 
referred  to,  as  consenting  to  look  to  the  agent  only,  and  is  thereby 
precluded  from  looking  to  the  principal.  But  there  are  cases 
which  establish  this  position,  that  although  he  debits  the  agent 
who  has  contracted  in  such  a  way  as  to  make  himself  personally 
liable,  yet,  unless  the  seller  does  something  to  exonerate  the  prin- 
cipal, and  to  say  that  he  will  look  to  the  agent  only,  he  is  at  liberty 
to  look  to  the  principal  when  that  principal  is  discovered. 

In  the  present  case  the  seller  knew  that  there  was  a  principal, 
but  there  is  no  authority  to  show  that  mere  knowledge  that  there 
is  a  principal  destroys  the  right  of  the  seller  to  look  to  that  princi- 
pal as  soon  as  he  knows  who  that  principal  is,  provided  he  did  not 
know  who  he  was  at  the  time  when  the  purchase  was  originally 
made.  It  is  said  that  the  seller  ought  to  have  asked  the  name  of 
the  principal,  and  charged  him  with  the  price  of  the  goods.  By 
omitting  to  do  so,  he  might  have  lost  his  right  to  claim  payment 
from  the  principal,  had  the  latter  paid  the  agent,  or  had  the  state 
of  accounts  between  the  principal  and  agent  been  such  as  to  make 
it  unjust  that  the  former  should  be  called  upon  to  make  the  pay- 
ment. But  in  a  case  circumstanced  as  this  case  is,  where  it  does 
not  appear  but  that  the  man  who  has  the  goods  has  not  paid  for 
them,  what  is  the  justice  of  tlie  case?  That  he  should  pay  for 
them  to  the  seller  or  to  the  insolvent  agent,  or  to  the  estate  of  the 
insolvent  agent,  who  has  made  no  payment  in  respect  to  these 

'  See  aa  to  this,  Irvine  vs.  WaUon,  post,  p.  550. 


650  Cases  on  Agency.  [Book  IV 

goods?  The  justice  of  the  case  is,  as  it  seems  to  me,  all  on  one 
side,  namely,  that  the  seller  shall  be  paid,  and  that  the  buyer  (the 
principal)  shall  be  the  person  to  pay  him,  provided  he  has  not  paid 
anybody  else.  Now,  upon  the  evidence  it  appears  that  the  defendant 
had  the  goods,  and  has  not  paid  for  them,  either  to  McKune  or  the 
present  plaintiffs  or  to  anybody  else.  He  will  be  liable  to  pay  for 
them,  either  to  the  plaintiffs  or  to  McKune's  estate.  The  justice 
of  the  case,  as  it  seems  to  me,  is  that  he  should  pay  the  plaintiffs, 
who  were  the  sellers,  and  not  any  other  persons.  I  am  therefore 
of  opinion  that  the  direction  of  the  recorder  was  right. 
LiTTLEDALB,  J.,  to  the  same  effect.  Judgment  aflBrmed. 

Note. — ^WMle  the  result  of  this  case  has  been  approved,  much  that 
appears  in  the  opinions  of  Lord  Tenterden  and  Bayley,  J.,  has  been  dis- 
approved.   See  Irvine  vs.  Watson,  post,  p.  550. 

As  to  what  constitutes  an  election  to  look  to  the  agent  only,  see  Beymer 
vs.  Bonsall,  post,  p.  554. 

The  principal  case  was  quoted  from  and  followed  in  Merrill  vs.  Kenyan, 
(1880)  48  Conn.  814,  40  Am.  Rep.  174,  where  it  was  held  that  if  one  sells 
goods  to  another,  who  informs  him  that  he  is  buying  as  agent  for  a  third, 
but  does  not  disclose  his  principal's  name,  and  the  seller  does  not  require 
the  name  nor  know  who  the  prmcipal  is,  but  takes  the  agent's  note  for  the 
price,  he  may  still  elect  to  hold  the  principal 


(Law  Eepoets,  5  Queen's  Bench  Division   414,  29   Moak's 
Enq.  Rep.  371.) 

IRVINE  vs.  WATSON. 

(English  Court  of  Appeal,  June,  1880.) 

Action  to  recover  of  defendants  the  price  of  oil  bought  for  them 
from  plaintiffs  by  defendants'  broker.  Plaintiff's  had  judgment 
below.     Defendants  appealed.     Opinion  states  the  facta. 

Gully,  Q.  C,  and  Compton,  for  defendants. 
W.   R.  Kennedy  {Sir  Farrer  Eerschell,  S.  0.,  with  him),  for 
plaintiffs. 

Bramwell,  L.  J.  I  am  of  opinion  that  the  judgment  must  be 
affirmed.  The  facts  of  the  case  are  shortly  these:  The  plaintiffs 
sold  certain  casks  of  oil,  and  on  the  face  of  the  contract  of  sale 
Oonning  appeared  as  the  purchaser.     But  the  plaintiffs  knew  that 


Chap.  V]  Ievine  vs.  Watson.  551 

he  was  only  an  agent  buying  for  principals,  for  he  told  them  so  at 
the  time  of  the  sale,  therefore  they  knew  that  they  had  a  right 
against  somebody  besides  Conning.  On  the  other  hand,  the 
defendants  knew  that  somebody  or  other  had  a  remedy  against 
them,  for  they  had  authorized  Conning,  who  was  an  ordinary 
broker,  to  pledge  their  credit,  and  the  invoice  specified  the  goods 
to  have  been  bought  "per  John  Conning.'-'  Then,  that  being  so, 
the  defendants  paid  the  broker,  and  the  question  is  whether  such 
payment  discharged  them  from  their  liability  to  the  plaintiffs.  I 
think  it  is  impossible  to  say  that  it  discharged  them,  unless  they 
were  misled  by  some  conduct  of  the  plaintiffs  into  the  belief  that 
the  broker  had  already  settled  with  the  plaintiffs,  and  made  such 
payment  in  consequence  of  such  belief.  But  it  is  contended  that 
the  plaintiffs  here  did  mislead  the  defendants  into  such  belief,  by 
parting  with  the  possession  of  the  oil  to  Conning  without  getting 
the  money.  The  terms  of  the  contract  were  "  cash  on  or  before 
delivery,*'  and  it  is  said  that  the  defendants  had  a  right  to  sup- 
pose that  the  sellers  would  not  deliver  unless  they  received  payment 
of  the  price  at  the  time  of  delivery.  I  do  not  think,  however, 
that  that  is  a  correct  view  of  the  case.  The  plaintiffs  had  a  per- 
fect right  to  part  with  the  oil  to  the  broker  without  insisting 
strictly  upon  their  right  to  prepayment,  and  there  is,  in  my  opin- 
ion, nothing  in  the  facts  of  the  case  to  justify  the  defendants  in 
believing  that  they  would  so  insist.  No  doubt  if  there  was  an 
invariable  custom  in  the  trade  to  insist  on  prepayment  where  the 
terms  of  the  contract  entitled  the  seller  to  it,  that  might  alter  the 
matter;  and  in  such  case  non-insistence  on  prepayment  might  dis- 
charge the  buyer  if  he  paid  the  broker  on  the  faith  of  the  seller 
already  having  been  paid.  But  that  is  not  the  case  here;  the  evi- 
dence before  Bo  wen,  J.,  shows  that  there  is  no  invariable  custom 
to  that  effect. 

Apart  from  all  authorities,  then,  I  am  of  opinion  that  the 
defendants'  contention  is  wrong,  and  upon  looking  at  the  author- 
ities I  do  not  think  that  any  of  them  are  in  direct  conflict  with 
that  opinion.  It  is  true  that  in  Thomjjson  vs.  Davenport,  9  B.  & 
C.  78  {ante,  p.  547)  both  Lord  Tenterden  and  Ba  yley,  J.,  suggest 
in  the  widest  terms  that  a  seller  is  not  entitled  to  sue  the  undisclosed 
principal  on  discovering  him,  if  in  the  meantime  the  state  of 
account  between  the  principal  and  the  agent  has  been  altered  to 
the  prejudice  of  the  principal. 

But  it  is  impossible  to  construe  the  dicta  of  those  learned  judges 


653  Cases  on  Agency.  [Book  IV 

in  that  case  literally;  it  wonld  operate  most  nnjustly  to  the  vendor 
if  we  did.     I  think  the  judges  who  uttered  them  did  not  intend  a 
strictly  literal  interpretation  to  be  put  on  their  words.    But  whether 
they  did  or  not,  the  opinion  of  Parke,  B.,  in  Heald  vs.  Kenworthy, 
10  Ex.  739,  24  L.  J.  (Ex.)  76,  seems  to  me  preferable;  it  is  this, 
that,  *'  If  the  conduct  of  the  seller  would  make  it  unjust  for  him 
to  call  upon  the  buyer  for  the  money,  as  for  example,  where  the 
principal  is  induced  by  the  conduct  of  the  seller  to  pay  his  agent 
the  money  on  the  faith  that  the  agent  and  seller  have  come  to  a 
settlement  on  the  matter,  or  if  any  representation  to  that  effect  is 
made  by  the  seller  either  by  words  or  conduct,  the  seller  cannot 
afterwards  throw  off  the  mask  and  sue  the  principal. '^    That  is  in 
my  judgment  a  much  more  accurate  statement  of  the  law.     But 
then  the  defendants  rely  on  the  case  of  Armstrong  vs.   Slohes,   L. 
E.  7  Q.  B.  598.     Now  that  is  a  very  remarkable  case;  it  seems  to 
have  turned  in  some  measure  upon  the  peculiar  character  filled  by 
Messrs.  Ryder  as  commission  merchants.     The  court  seemed  to 
have  thought  it  would  be  unreasonable  to  hold  that  Messrs.  Ryder 
had  not  authority  to  receive  the  money.     I  think  upon  the  facts  of 
that  case  that  the  agents  would  have  been  entitled  to  maintain  an 
action  for  the  money  against  the  defendant,  for  as  commission 
merchants  they  were  not  mere  agents  of  the  buyer.     Moreover  the 
present  is  a  case,  which  Blackburn",  J.,  there  expressly  declines 
to  decide.     He  expressly  draws  a  distinction  between  a  case  in 
which,  as  in  Armstrong  vs.  Stokes,  supra,  the  seller  at  the  time  of 
the  sale  supposes  the  agent  to  be  himself  a  principal,  and  gives 
credit  to  him  alone,  and  one  in  which,  as  here,  he  knows  that  the 
person  with  whom  he  is  dealing  has  a  principal  behind,  though  he 
does  not  know  who  that  principal  is. 

It  is  to  ray  mind  certainly  difficult  to  understand  that  distinc- 
tion, or  to  see  how  the  mere  fact  of  the  vendor  knowing  or  not 
knowing  that  the  agent  has  a  principal  behind  can  affect  the  lia- 
bility of  that  principal.  I  should  certainly  have  thought  that  his 
liability  would  depend  upon  what  he  himself  knew,  that  is  to  say 
whether  he  knew  that  the  vendor  had  a  claim  against  him  and 
would  look  to  him  for  payment  in  the  agent's  default.  But  it  is 
sufficient  here  that  the  defendants  did  know  that  the  sellers  had  a 
claim  against  them,  unless  the  broker  had  already  paid  for  the 
goods. 

In  this  view  of  the  case  it  is  unnecessary  to  consider  the  further 
question  raised  by  Mr.  Kennedy,  as  to  whether  a  payment  on  a 


Chap.  V]  Ievine  vs.  Watsoh.  653 

general  running  account,  as  distinguished  from  a  payment  specifi- 
cally appropriated  to  the  particular  purchase,  would  be  sufTicient  to 
bring  the  case  within  Lord  Tenterden's  qualification  of  the 
general  rule. 

Baqqallay  and  Beett,  L.  JJ.,  delivered  concurring  opinions. 

Appeal  dismissed. 

Note — In  the  United  States,  the  courts  have,  as  a  rule,  followed  the  dicta 
of  the  English  case  of  Thompson  vs.  Davenport,  now  repudiated  in  Eng- 
land as  shown  in  the  principal  case.  See  Fradley  vs.  Hyland,  (1888)  37  Fed. 
Rep.  49,  3  L.  R.  A.  749;  Laing  vs.  Butler,  37  Hun,  (N.  Y.)  144;  Thomas  V8. 
Atkinson,  88  Ind.  248;  Clealand  vs.  Walker,  11  Ala.  1058;  McCidlomjh  ve. 
Thompson,  45  N.  Y.  Super.  449.  See  the  cases  reviewed  in  23  Am.  L.  Rev. 
665.    In  Fradley  vs.  Hyland,  the  principal  case  was  apparently  overlooked. 


(116  New  York,  625.) 

KAYTON    vs.   BARNETT. 

^New  York  Court  of  Appeals,  December,  1889.  J 

Plaintiffs  sold  goods  to  one  Bishop  for  $4,500.  He  paid  13,000 
on  delivery  and  gave  three  notes  for  the  balance.  He  died  insolvent 
not  having  paid  any  of  the  notes.  Afterward,  plaintiffs  tendered 
these  notes  to  defendants  and  sued  them  to  recover  the  81,500  on 
the  ground  that  Bishop  was  really  acting  as  agent  for  defendants 
in  making  the  purchase.  Defendants  denied  the  agency.  Judg- 
ment for  defendants  below. 

W.  J.  Curtis,  for  appellants. 

A.  R.  Dyett,  for  respondents. 

FoLLETT,  0.  J.  When  goods  are  sold  on  credit  to  a  person 
whom  the  vendor  believes  to  be  the  purchaser,  and  he  afterwards 
discovers  that  the  person  credited  bought  as  agent  for  another,  the 
vendor  has  a  cause  of  action  against  the  principal  for  *,he  purchase 
price.  The  defendants  concede  the  existence  of  this  general  rule, 
but  assert  that  it  is  not  applicable  to  this  case,  because,  while 
Bishop  and  the  plaintiffs  were  negotiating,  they  stated  they  would 
not  sell  the  property  to  the  defendants,  and  Bishop  assured  them 
that  he  was  buying  for  himself  and  not  for  them. 

It  appears  by  evidence,  which  is  wholly  uncontradicted,  that  the 
defendants  directed  every  step  taken  by  Bishop  in  his  negotiations 


554  Cases  on  Agency.  [Book  IV 

with  the  plaintiffs;  that  the  property  was  pnrchased  for  and 
delivered  to  the  defendants,  who  have  ever  since  retained  it;  that 
they  paid  the  $3,000  towards  the  purchase  price,  and  agreed  with 
Bishop,  after  the  notes  had  been  delivered,  to  hold  him  harmless 
from  them.  Notwithstanding  the  assertion  of  the  plaintiffs  that 
they  would  not  sell  to  the  defendants,  they,  through  the  circum- 
vention of  Bishop  and  the  defendants,  did  sell  the  property  to  the 
defendants,  who  have  had  the  benefit  of  it,  and  have  never  paid 
the  remainder  of  the  purchase  price  pursuant  to  their  agreement. 
Bishop  was  the  defendants'  agent.  Bishop's  mind  was,  in  this 
transaction,  the  defendants'  mind,  and  so  the  minds  of  the  parties 
met,  and  the  defendants  having,  through  their  own  and  their 
agent's  deception,  acquired  the  plaintiffs'  property  by  purchase, 
cannot  successfully  assert  that  they  are  not  liable  for  the  remainder 
of  the  purchase  price  because  they,  through  their  agent,  succeeded 
in  inducing  the  defendants  to  do  that  which  they  did  not  intend  to 
do,  and,  perhaps,  would  not  have  done  had  the  defendants  not 
dealt  disingenuously. 

The  judgment  should  be  reversed  and  a  new  trial  ordered. 

Judgment  reversed. 


(79  Pennstltania  State,  298.) 

BEYMER  vs.  BONSALL. 

(Supreme  Court  of  Pennsylvania,  October,  1875.) 

This  was  an  action  of  assumpsit  commenced  June  2,  1871,  by 
Sterling  Bonsall  against  Simon  Beymer. 

The  plaintiff  declared  that  on  the  17th  of  November,  1870,  in 
consideration  of  ^1,000,  paid  by  the  plaintiff  to  Isaac  Wagner  and 
Richard  Leech,  brokers  and  agents  of  the  defendant,  he  promised 
to  deliver  to  the  plaintiff,  at  or  near  Pittsburg,  5,000  barrels  of 
petroleum,  at  any  time  from  January  1  to  June  30,  1871,  upon 
ten  days'  notice  to  Wagner  &  Leech  from  the  plaintiff,  at  10^  cents 
per  gallon  on  delivery;  that  the  plaintiff,  on  the  12th  day  of  June, 
1871,  ordered  Wagner  &  Leech  to  deliver  5,000  barrels  of  petroleum, 
but  Wagner  &  Leech  refused  to  do  bo. 

The  defendant  pleaded: 

1.  That  the  plaintiff  at  September  term,  1871,  of  the  court  ot 


Chap.  V]  Betmee  ys.  Bonsall.  666 

common  pleas  of  Allegheny  county,  impleaded  Wagner  &  Leech  on 
the  same  cause  of  action  as  that  upon  which  the  present  suit  was 
founded,  and  did  thereby  elect  to  acquit  and  discharge  the 
defendant  of  the  same. 

2.  That  in  the  same  cause  he  recovered  judgment  against  Wagner 
&  Leech  for  $5,651.25,  on  the  same  promises  and  undertakings. 

The  plaintiif  demurred  to  the  plea,  and  assigned  as  cause  of 
demurrer: 

1.  That  it  did  not  appear  that  because  of  a  judgment  recovered 
as  was  averred  in  the  plea,  the  plaintiff  has  not  also  a  cause  of 
action  against  the  defendant. 

2.  That  the  plaintiff  did  not  acquit  the  principal  by  a  recovery 
of  a  judgment  against  the  agent. 

The  court  did  not  decide  upon  the  demurrer,  but  permitted  the 
case  to  go  to  the  jury. 

The  court  instructed  the  jury  to  find  for  the  plaintiff,  the  facts 
being  undisputed,  subject  to  the  opinion  of  the  court  on  the 
question,  whether  under  the  demurrer  to  the  defendant's  pleas  the 
judgment  should  be  for  the  defendant. 

The  jury  found  a  verdict  for  the  plaintiff  for  $6,300. 

The  court  afterwards  entered  judgment  for  the  plaintiff  on 
the  reserved  question. 

The  defendant  took  a  writ  of  error  and  assigned  for  error  the 
entering  judgment  for  the  plaintiff. 

0.  Shir  as,  Jr.,  for  plaintiff  in  error. 

When  the  party  dealing  with  an  agent,  and  with  knowledge  of 
the  agency,  elects  to  make  the  agent  his  debtor  he  cannot  after- 
wards have  recourse  to  the  principal.  J.  Kent's  Com.  633;  Pater^ 
son  vs.  Qandassequi,  16  East.  62;  Addison  vs.  Gandassequi,  4 
Taunton,  574;  Thompson  vs.  Davehport,  9  B.  &  C.  78. 

Where  a  creditor  proceeds  against  a  factor  and  obtains  an  award 
of  arbitration  against  him,  it  is  an  election  to  treat  the  factor  as 
his  debtor,  and  he  cannot  enforce  the  claim  against  the  principal. 
Though  not  actual,  it  is  legal  satisfaction  for  the  debt.  Merrick's 
Estate,  5  W.  &  S.  17;  Emery  vs.  Foivler,  39  Maine,  226;  Camp- 
bell vs.  Phelps,  1  Pick.  62;  King  vs.  McLean,  15  N.  H.  9. 

T.  J.  Keenan  (with  whom  was  D.  W.  >ellers)  for  defendant  in 
error. 

Per  Curiam.  Undoubtedly  an  agent  who  makes  a  contract  in 
his  own  name  without  disclosing  his  agency  is  liable  to  the  other 


556  Cases  on  Agency.  [Book  IV 

party.  The  latter  acts  upon  his  credit  and  is  not  bonnd  to  yield 
up  his  rights  to  hold  the  former  personally,  merely  becanse  he  dis- 
closes a  principal  who  is  also  liable.  The  principal  is  liable  because 
the  contract  was  for  his  benefit,  and  the  agent  is  benefited  by  his 
being  presumedly"  the  creditor,  for  there  can  be  but  one  satisfac- 
tion. But  it  does  not  follow  that  the  agent  can  afterwards 
discharge  himself  by  putting  the  creditor  to  his  election.  Being 
already  liable  by  his  contract,  he  can  be  discharged  only  by  satis- 
faction of  it,  by  himself  or  another.  So  the  principal  has  no  right 
to  compel  the  creditor  to  elect  his  action,  or  to  discharge  either 
himself  or  his  agent,  but  can  defend  his  agent  only  by  making 
Batisfaction  for  him.  We  think  no  error  was  committed  by  the 
court  below,  except  in  the  form  of  the  reservation.  Judgment 
should  have  been  given  directly  on  the  demurrer  itself  and  not  by 
way  of  reserved  point  upon  it.  This,  however,  is  not  a  substantial 
error,  and  the  judgment  may  be  treated  as  entered  upon  the 

demurrer. 

Judgment  afiQrmed. 

Note.— Taking  the  agent's  note  is  not  an  election  to  look  to  him  only, 
Merrill  vs.  Kenyon,  48  Conn.  314,  40  Am.  Rep.  174;  Pope  vs.  Meadow  etc. 
Co.,  20  Fed.  Rep.  35;  Keller  vs.  Singleton,  69  Ga.  703;  nor  is  the  fact  that 
the  goods  were  charged  to  the  agent;  Raymo7id  vs.  Crown,  etc.  Mills,  2 
Mete.  (Mass.)  319;  Frerich  vs.  Price,  24  Pick.  (Mass.)  13;  Guest  vs.  Opera 
House  Co.,  74  Iowa,  457;  or  sent  the  bill  to  the  agent;  Henderson  vs.  May- 
hew,  2  Gill  (Md.)  393,  41  Am.  Dec.  434;  or  filed  a  claim  against  his  estate, 
Curtis  vs.  Williamson,  L.  R.  10  Q.  B,  57;  or  began  action  against  him, 
Cohb  vs.  Knapp.  71  N.  Y.  318,  27  Am.  Rep.  51. 

Compare  with  Cleveland  vs,  Pearl,  post,  556;  Kayton  va.  Barnett,  ante, 
653. 


(63  Vermont,  127,  25  Am.  St.  Rep.  748,) 

CLEVELAND  vs.  PEARL. 

^Supreme  Court  of  Vermont,  October,  1890.  J 

Pearl  entered  into  a  contract  with  Cleveland,  on  June  16,  1888, 
to  buy  Cleveland's  wool.  It  was  to  be  delivered  to  Pearl's  agent, 
Hoyt,  to  whom  Pearl  was  to  supply  the  money  to  pay  for  it,  which 
he  did,  before  the  wool  was  delivered,  telling  Hoyt  to  pay  for  it  in 
cash.      June  22,  Cleveland  delivered  the  wool  to  Hoyt,  but  the 


Ohap.  V]  Cleveland  vs.  Peakl.  557 

latter  instead  of  paying  in  cash,  paid  partly  in  cash  and  gave  his 
own  check  for  the  balance  which  was  dishonored.  Cleveland  kept 
the  check  nntil  June  26,  when  he  indorsed  and  delivered  it  to  a 
third  person  in  payment  of  a  debt.  June  26,  Pearl  settled 
with  Hoyt  paying  him  a  balance  greater  than  the  amount  of 
the  check.  July  9,  Pearl  learned  for  the  first  time  that  the  wool 
had  not  been  paid  for  in  cash.  This  action  was  to  hold  Pearl  liable 
for  the  amount  unpaid.  Judgment  for  plaintiU  below  and  defend- 
ant appealed. 

L.  H.  Thompson,  for  the  appellants. 
G.  A.  Prouty,  for  the  plaintiff. 

RowELL,  J.  It  not  having  been  found  how  it  was  in  fact,  this 
was  in  law  a  sale  for  cash  on  delivery.  And  it  is  manifest  that  the 
parties  so  understood  it,  for  the  defendants  put  Hoyt  in  funds  where- 
with to  pay  on  delivery,  and  the  plaintiff  called  for  payment  in 
money  when  he  delivered.  And  when  he  found  that  he  could  not 
get  cash  in  full  according  to  his  right,  he  had  an  option  not  to 
deliver  at  all.  But  he  chose  to  deliver  notwithstanding,  and  to 
take  Hoyt's  check,  payable  to  himself,  for  the  unpaid  balance,  in 
the  giving  of  which  Hoyt  was  not  defendant's  agent,  for  he  was 
acting  outside  the  scope  of  his  authority,  which  was  to  pay  cash 
down,  and  the  plaintiff  ought  to  have  known  it.  But  if  he  did  not, 
the  law  will  treat  him  just  as  though  he  did,  for  he  who  deals  with 
an  agent  having  only  a  special  and  limited  authority,  is  bound,  a< 
his  peril,  to  know  the  extent  of  his  authority.  White  vs.  Langdon, 
30  Vt.  599;  Sprng^ie  vs.  Train,  34  Vt.  150. 

By  taking  the  check  in  the  circumstances  disclosed, — agreeing 
for  his  own  convenience  for  delay  in  presenting  it,  and  subsequently 
parting  with  it  in  payment  of  his  debt,  the  defendants  having  been 
prejudiced,  if  liable  here,  by  paying  their  debt  to  Hojt  in  the  mean- 
time, when,  had  they  known  how  it  was,  they  could  have  paid  the 
plaintiff  and  saved  themselves, — the  plaintiff  must  be  deemed  to 
have  made  the  check  his  own,  and  to  have  accepted  the  credit  and 
responsibility  of  Hoyt  instead  of  that  of  the  defendants,  and  to  have 
discharged  the  latter.  In  other  words,  Hoyt's  check  paid  the  debt 
as  between  these  parties. 

The  plaintiff  stands  no  better  than  he  would  had  he  taken  the 
check  in  preference  to  the  money,  or  had  given  a  receipt  acknowl- 
edging payment,  when  he  would  certainly  have  discharged  the 
defendants;  for  so  are  all  the  authorities. 


558  Cases  os  Agency.  [Book  IV 

The  case  is  not  like  those  in  which  the  plaintiff  had  no  option, 
and  conld  do  better  than  to  take  a  bill  or  note,  and  no  injury 
resnlted  to  the  defendant  in  consequence  of  taking  it.  In  such 
case  the  check  is  a  conditional  and  not  an  absolute  payment.  Bob- 
inson  vs.  Read,  9  Barn.  &  C.  449,  is  of  that  class. 

But  here  was  no  antecedent  debt,  and  the  plaintiff  had  the  staff 
in  his  own  hands,  and  might  have  kept  the  wool;  but  he  chose  to 
deliver  it,  and  to  take  Hoyt's  check  for  it,  without  authority  from 
the  defendants,  or  notice  to  them,  and  he  has  no  standing  to  claim 
that  the  check  was  only  conditional  payment. 

Judgment  reversed  and  cause  remanded. 


II. 

DISCLOSED   PRINCIPALS. 


(134  Massachusetts,  169,  45  Am.  Rep.  314.) 

BYINGTON  vs.  SIMPSON. 

C  Supreme  Judicial  Court  of  Massachusetts,  January,  188S.J 

Suit  on  contract.  The  opinion  states  the  case.  The  plaintiffs 
had  judgment  below. 

J.  H.  Benton,  Jr.,  for  defendant. 

S.  L.  1  owers  and  0.  W.  Sanderson,  for  plaintiffs. 

Holmes,  J.  This  is  a  suit  to  recover  a  balance  due  under  a 
building  contract.  The  contract  was  in  writing  and  purported  on 
its  face  to  be  made  by  the  plaintiffs  with  J.  B.  Simpson.  It  pro- 
vided that  the  work  should  be  done  under  the  direction  of  J.  B. 
Simpson,  agent,  and  was  signed  "J.  B.  Simpson,  agent.*'  J.  B. 
Simpson  was  in  fact  contracting  as  agent  for  the  defendant,  his 
wife,  and  this  was  known  to  the  plaintiffs  at  the  time  the  contract 
was  made. 

The  defendant  contends  that  she  was  not  bound  by  this  contract 
under  the  foregoing  circumstances.  The  fact  that  the  contract 
purports  to  be  under  seal,  although  not  sealed,  has  not  been  relied 
on  as  affecting  the  case,  which  especially  in  view  of  the  inartificial 
nature  of  the  instrument,  it  ought  not  to  do;  but  the  argument  la 


Chap.  V]  Btingtoit  vs.  Simpsou.  659 

that  inasmuch  as  the  plaintiffs  knew  of  the  existence  of  a  principal 
before  the  contract  was  made,  and  then  were  contented  to  accept 
a  written  agreement  which  on  its  face  bound  the  agent,  they  must 
be  taken  to  have  dealt  with,  and  to  have  given  credit  to,  the  agent 
alone;  just  as  upon  a  subsequent  discovery  of  the  undisclosed  prin- 
cipal, they  might  have  determined  their  right  to  charge  him  by  a 
sufficient  election  to  rely  upon  the  credit  of  the  agent. 

We  are  of  opinion  that  plaintiffs'  knowledge  does  not  make  their 
case  any  weaker  than  it  would  have  been  without  it.  Whatever  the 
original  merits  of  the  rule  that  a  party  not  mentioned  in  a  simple 
contract  in  writing  may  be  charged  as  a  principal  upon  oral  evi- 
dence, even  where  the  writing  gives  no  indication  of  an  intent  to 
bind  any  other  person  than  the  signer,  we  cannot  reopen  it,  for  it 
is  as  well  settled  as  any  part  of  the  law  of  agency.  Huntington  vs. 
Knox,  7  Cush.  (Mass.)  371,  374  {post,  p.  587);  Eastern  Railroad 
vs.  Benedict,  5  Gray,  (Mass.)  6G1,  66  Am.  Dec.  384;  Lerned  vs. 
Johns,  9  Allen,  419;  Hunter  vs.  Giddings,  97  Mass.  41;  Exchange 
BanTc  vs.  Rice,  107  Id.  37,  41,  9  Am.  Eep.  1;  National  Ins.  Co.  vs. 
AUe7i,116  Mass.  398;  Higgins  vs.  Senior,  8  M.  &  W.  834  {ante,  p.456). 
And  it  is  evident  that  words  which  are  sufficient  on  their  face,  by 
established  law,  to  bind  a  principal,  if  one  exists,  cannot  be  deprived 
of  their  force  by  the  circumstance  that  the  other  party  relied  upon 
their  sufficiency  for  that  purpose.  Yet  that  is  what  the  defendant's 
argument  comes  to.  For  the  same  parol  evidence  that  shows  the 
plaintiffs'  knowledge  of  the  agency  may  warrant  the  inference  that 
the  plaintiffs  meant  to  have  the  benefit  of  it  and  to  bind  the 
principal. 

The  only  reasons  which  have  been  offered  for  the  admissibility  of 
oral  evidence  to  charge  the  alleged  principal  confirm  this  con- 
clusion. That  suggested  in  Higgins  vs.  Senior,  ubi  suj^ra,  is  the 
same  which  is  usually  given  for  the  liability  of  a  master  for  his 
servant's  torts,  that  the  act  of  the  agent  is  the  act  of  the  principal 
(see  1  Bl.  Com.  432;  Laugher  vs.  Pointer,  5  B.  &  C.  547,  553; 
Williams  vs.  Jones,  3  H.  &  0.  602,  609);  the  meaning  of  which, 
in  its  latter  application  at  least,  is,  as  was  stated  long  ago,  that 
master  and  servant  are  **  feigned  to  be  all  one  person.'*  West's 
Symboleography,  part  I,  sec.  3,  "  Of  the  Fact  of  Man."  The  most 
plausible  explanation  which  has  been  attempted  pursues  the  same 
thought  more  clearly.  It  is  said  that  the  principal  is  liable 
**  because  he  is  taken  to  have  adopted  the  name  of  the  (agent)  as  his 
own  for  the  purpose  of  (the)  contract."    2  Smith  Lead.  Cas.  8th 


660  Oases  on  Agency.  [Book  IV 

ed.  408,  note  to  Thompson  vs.  Davenport;  Trueman  vs.  Loder,  11 
Ad.  &  El.  589,  595;  8.  c,  3  P.  &.  Dav.  267,  271.  If  tliis  is  to  be 
accepted,  there  is  obviously  the  strongest  ground  for  saying  that 
the  principal  has  adopted  the  agent's  name  for  the  purposes  of  a 
given  contract  when  it  is  shown  that  both  parties  have  acted  on 
that  footing. 

The  most  that  could  fairly  be  argued  in  any  case  would  be,  that 
under  some  circumstances,  proof  that  the  other  party  knew  of  the 
agency,  and  yet  accepted  a  writing  which  did  not  refer  to  it,  and 
which  in  its  natural  sense  bound  the  agent  alone,  might  tend  to 
show  that  the  contract  was  not  made  with  any  one  but  the  party 
whose  name  was  signed;  that  the  agent  did  not  sign  as  agent,  and 
was  not  understood  to  do  bo,  but  was  himself  the  principal.  But 
these  are  questions  of  fact,  and  as  a  matter  of  fact  it  is  obvious, 
and  it  is  found,  that  the  defendant  was  the  principal,  and  that  the 
contract  was  made  with  her. 

The  objection  that  two  persons  cannot  be  bound  by  the  same 
signature  to  a  contract,  if  sound,  would  be  equally  fatal  when  the 
principal  was  not  known.  There  is  a  double  obligation,  although 
there  can  be  but  one  satisfaction. 

Our  decision  is  in  accordance  with  a  thoroughly  discussed 
English  case  which  went  to  the  exchequer  chamber,  and  with  the 
statement  of  the  law  by  Mr.  Justice  Stoey  there  cited.  Calder 
v«.  Doiell,  L.  R.  6  C.  P.  486.      Story,  Agency,  sec.  160«. 

Judgment  for  the  plaintiffs  affirmed. 


(Ill  New  York,  604,  7  Am.  St.  Rep.  769.) 

CONSTANT  vs.  UNIVERSITY  OF  ROCHESTER. 

('New  York  Court  of  Appeals,  January,  1889. J 

Action  to  foreclose  a  mortgage  made  by  Elizabeth  Mehan  and 
husband.  The  defendant,  the  University  of  Rochester,  claimed 
title  to  the  mortgaged  premises,  under  the  foreclosure  of  a  second 
mortgage  made  to  it  by  the  same  mortgagors,  and  alleged  that  it  had 
no  notice  of  plaintiU's  mortgage.  Judgment  at  special  term  for 
plaintiff  was  affirmed  at  the  general  term. 

Martin  W.  Cooke,  for  the  appellant. 


Chap.  V  ]  Constant  vs.  University.  661 

John  E.  Parsons,  for  the  respondents. 

Peckham,  J.  In  taking  the  mortgage  of  January,  1884,  we 
think  the  university  ocenpied  the  position  of  a  mortgagee  for  a 
valuable  consideration.  It  surrendered  a  prior  mortgage,  with  the 
accrued  interest  thereon,  and  took  the  mortgage  in  question.  If 
the  university  be  not  chargeable  with  notice  of  the  prior  mortgage 
to  Constant,  which  was  unrecorded,  then  its  own  mortgage  is  the 
prior  lien  as  between  the  two.  The  first  important  question  arising 
is,  did  Deane,  who  acted  in  the  transaction  as  the  attorney  and  agent 
for  the  university  at  the  time  of  the  execution  of  the  mortgage  to 
the  university,  have  knowledge  of  the  existence  of  the  prior  mort- 
gage to  Constant,  executed  in  February,  1883,  and  which  he  then 
took  as  agent  for  Constant?  In  other  words,  is  there  any  proof 
that,  he,  in  January,  1884,  had  that  fact  present  in  his  mind  and 
recollection,  so  that  it  can  be  said  from  the  evidence  that  he  then 
had  knowledge  of  its  existence  as  an  unpaid,  outstanding  obligation? 

The  transaction  out  of  which  the  mortgage  to  the  university 
arose  occurred  eleven  months  subsequent  to  the  transaction  out  of 
which  the  mortgage  in  suit  arose;  and  the  former  mortgage  was 
neither  a  part  of  the  same  transaction  as  the  latter,  nor  had  it  the 
least  connection  therewith.  Under  the  law  as  decided  by  the  older 
cases  in  England,  such  fact  would  have  been  an  absolute  defense  to 
the  claim  that  there  was  any  constructive  notice  to  the  defendant 
arising  out  of  notice  to  its  agent,  because  such  notice  was  in 
another  and  entirely  separate  transaction.  In  Warrick  vs.  War- 
rick, 3  Atk.  291,  294,  decided  by  the  Lord  Chancellor  Hardwickb 
in  1745,  that  able  judge  assumed  it  as  unquestioned  law  that  notice 
to  the  agent,  in  order  to  bind  his  principal  by  constructive  notice, 
should  be  in  the  same  transaction.  He  said,  "  This  rule,  ought  to 
be  adhered  to;  otherwise  it  would  make  purchasers' and  mortgagees* 
title  depend  altogether  on  the  memory  of  their  counsellors  and 
agents,  and  oblige  them  to  apply  to  persons  of  less  eminence  as 
counsel,  as  not  being  so  likely  to  have  notice  of  former  transact- 
tions."  Cases  were  continually  arising  subsequent  to  that  case, 
wherein  the  principle  was  assumed  as  the  law  of  England, 
although  the  cases  did  not  in  their  facts  absolutely  call  for  a  decis- 
ion on  that  point.. 

But  in  Mountford  vs.  Scott,  1  Turn.  &  R.  274,  upon  an  appeal 
from  a  decision  of  the  vice-chancellor.  Lord  Chancellor  Eldon 
36 


562  Oases  on  Agexcy.  [Book  IV 

said  that  the  vice-chancellor  proceeded  upon  the  notion  that  notice 
to  a  man  in  one  transaction  is  not  to  be  taken  as  notice  to  him 
in  another  transaction.  The  lord  chancellor  continued:  "In 
that  view  of  the  case,  it  might  fall  to  be  considered  whether  one 
transaction  might  not  follow  so  close  upon  the  other  as  to  render 
it  impossible  to  give  a  man  credit  for  having  forgotten  it/'  He 
further  said  that  he  would  be  unwilling  to  go  so  far  as  to  say  that 
if  an  attorney  has  notice  of  a  transaction  in  the  morning,  he  shall 
be  held,  in  a  court  of  equity,  to  have  forgotten  it  in  the  evening; 
that  it  must  in  all  cases  depend  upon  the  circumstances. 

In  Ilargreaves  vs.  Rothioell,  1  Keen,  154,  Lord  Langdale, 
master  of  the  rolls,  held  that  where  one  transaction  is  closely 
followed  by  and  connected  with  another,  or  where  it  is  clear  that 
a  previous  transaction  was  present  to  the  mind  of  the  solicitor 
when  engaged  in  another  transaction,  there  is  no  ground  for  a  dis- 
tinction by  which  the  rule  that  notice  to  the  solicitor  is  notice  to 
the  client  should  be  restricted  to  the  same  transaction. 

In  Nixon  vs.  Hamilton,  2  Dru.  &  Walsh,  364,  decided  in  1838, 
Lord  Chancellor  Plukket  adverted  to  the  rule  as  to  the  necessity 
of  notice  in  the  same  transaction,  and  stated,  if  it  were  notice 
acquired  in  the  same  transaction,  necessarily  the  principal  was  to 
be  charged  with  the  knowledge  of  the  agent;  but  if  it  were  notice 
received  by  him  in  another  transaction,  then  such  notice  was  not 
to  aliect  the  principal,  unless  he  actually  had  the  knowledge  at  the 
time  of  the  second  transaction.  See,  also,  the  case  of  Dresser  vs. 
Norwood,  17  Com.  B.,  N.  S.  446,  decided  in  the  court  of  exchequer 
chamber. 

This  modification  of  the  old  English  rule  is  recognized  in  the 
comparatively  late  case  of  The  Distilled  Spirits,  11  Wall.  356.  Mr. 
Justice  Bradley,  in  delivering  the  opinion  of  the  Supreme  Court 
of  the  United  States,  stated  that  the  doctrine  in  England  seemed 
to  be  established  that,  if  the  agent  at  the  time  of  effecting  a  pur- 
chase has  knowledge  of  any  prior  lien,  trust,  or  fraud  affecting  the 
property,  no  matter  when  he  acquired  such  knowledge,  his  prin- 
cipal is  affected  thereby.  If  he  acquire  the  knowledge  when  he 
effects  the  purchase,  no  question  can  arise  as  to  his  having  it  at 
that  time.  If  he  acquired  it  previous  to  the  purchase,  the  pre- 
sumption that  he  still  retains  it,  and  has  it  present  to  his  mind, 
will  depend  upon  facts  and  other  circumstances.  Clear  and  satis- 
factory proof  that  it  was  so  present  seems  to  be  the  only  restriction 


Cliap.  V  ]  Constant  vs.  University.  663 

required  by  the  English  rule  as  now  understood.  And  the  learned 
justice  states  that  the  rule,  as  finally  settled  by  the  English  court, 
is,  in  his  judgment,  the  true  one,  and  is  deduced  from  the  best 
considerations  of  the  reasons  on  which  it  is  founded.  In  this 
opinion  the  whole  court  concurred. 

Story,  in  his  work  on  agency,  section  140,  says:  "  But  unless 
notice  of  the  fact  come  to  the  agent  while  he  is  concerned  for  the 
principal,  and  in  the  course  of  the  very  transaction,  or  so  near 
before  it  that  the  agent  must  be  presumed  to  recollect  it,  it  is  not 
notice  thereof  to  the  principal.  For  otherwise  the  agent  might 
have  forgotten  it,  and  then  the  principal  would  be  affected  by  his 
want  of  memory  at  the  time  of  undertaking  of  the  agency. 
Notice,  therefore,  to  the  agent  before  the  agency  is  begun,  or  after 
it  has  terminated,  will  not  ordinarily  affect  the  principal." 

In  BanJc  of  the  United  States  vs.  Davis,  2  Hill,  (N.  Y.)  451,  it  was 
held  that  the  principal  is  deemed  to  have  notice  of  whatever  is  com- 
municated to  his  agent  while  acting  as  such  in  a  transaction  to 
which  the  communication  relates.  And  it  was  held  in  that  case 
that  notice  to  a  bank  director  or  knowledge  obtained  by  him 
while  not  engaged  officially  in  the  business  of  the  bank  would  be 
inoperative  as  notice  to  the  bank. 

In  Ilolden  vs.  New  York  and  Erie  BanJc,  72  N.  Y.  286,  the  rule 
was  explained,  and  it  was  therein  held  that  where  an  agency  was 
in  its  nature  continuous  and  made  up  of  a  long  series  of  transac- 
tions of  the  same  general  character,  the  knowledge  acquired  by 
the  agent  in  one  or  more  of  the  transactions  is  to  be  charged  as  the 
knowledge  of  the  principal,  and  will  affect  the  principal  in  any 
other  transaction  in  which  the  agent  as  such  is  engaged,  and  in 
which  the  knowledge  is  material.  In  that  case  it  will  be  seen 
upon  reading  the  very  able  opinion  of  Folger,  C.  J.,  that  there 
was  no  question  as  to  the  knowledge  of  the  agent  of  the  various 
facts,  and  the  only  question  raised  was  whether  it  should  be 
imputed  to  his  various  principals  in  the  transactions. 

In  Cragie  vs.  HadJey,  99  N.  Y.  131,  the  doctrine  that  the  knowl- 
edge of  the  agent  should  come  to  him  in  the  identical  transaction 
was  alluded  to,  and  it  was  held  that  it  was  not  necessary  in  all  cases 
that  the  notice  should  be  thus  given,  and  that  notice  to  an  agent 
of  a  bank  intrusted  with  the  management  of  its  business  was  notice  to 
the  corporation  in  transactions  conducted  by  such  agent,  acting 
for  the  corporation  in  the  scope  of  his  authority,  whether  the 
knowledge  of  the  agent  was  acquired  in  the  course  of  a  particular 


664  Cases  on  Agency.  [Book  IV 

dealing  or  on  some  prior  occasion.  See,  also,  Welsh  vs.  German 
American  Bank,  73  N.  Y.  434;  Atlantic  State  BanJc,  etc.,  vs. 
Savery,  82  Id.  291. 

From  all  these  various  cases  it  will  seem  that  the  farthest  that 
has  been  gone  in  the  way  of  holding  a  principal  chargeable  with 
the  knowledge  of  facts  communicated  to  his  agent,  where  the  notice 
was  not  received  or  the  knowledge  obtained  in  the  very  trans- 
action in  question,  has  been  to  hold  the  principal  chargeable  upon 
clear  proof  that  the  knowledge  which  the  agent  once  had,  and 
which  he  had  obtained  in  another  transaction,  at  another  time  and 
for  another  principal,  was  present  to  his  mind  at  the  very  time  of 
the  transaction  in  question. 

Upon  a  careful  review  of  the  testimony  in  this  case,  we  have  been 
unable  to  find  any  such  proof.  It  is  true,  the  learned  trial  judge 
finds,  that,  contemporaneously  with  the  execution  of  the  mortgage  to 
the  university,  Deane  caused  to  be  made  a  statement,  upon  the  basis 
that  the  amount  was  to  be  loaned  to  the  mortgagors,  and  that,  out 
of  the  money  coming  to  them  as  a  consideration  for  the  mortgage 
to  the  university,  the  amount  of  the  bond  and  mortgage  to  the 
plain tifE's  decedent,  with  interest,  was  to  be  paid,  and  that  mort- 
gage was  to  be  satisfied.  And  he  further  found  that  the  university, 
through  Deane,  had  notice  of  the  mortgage  of  the  plaintiff's  deced- 
ent in  connection  with  and  as  a  part  of  any  proposed  transaction 
by  which  there  was  to  be  loaned  to  the  mortgagor  the  amount  of 
the  bond  and  mortgage  to  the  university.  What  is  meant  by  the 
word  *'  contemporaneously,"  as  used  in  this  finding,  is,  perhaps, 
not  absolutely  clear.  If  it  meant  that  the  statement  mentioned 
was  procured  to  be  made  by  Deane  as  a  part  of  and  coincident  with 
the  execution  of  the  mortgage  to  the  university,  it  is  not,  as  we 
think,  based  upon  any  evidence.  There  is  no  proof  whatever  in 
this  case  that  Deane  procured  this  statement  to  be  made  by  any 
body,  and  Deane  himself  says  that  a  statement  of  this  nature  would, 
by  the  course  of  practice  in  his  office,  have  come  to  him  (made  by 
Bome  one  in  his  office)  the  day  after  the  loan  was  closed.  He  does 
not  pretend  to  recollect  this  particular  statement,  nor  is  there  any 
evidence  that  he  procured  it  to  be  made. 

His  testimony  shows  that  he  had  no  special  recollection  of  the 
things  which  took  place  upon  the  occasion  of  the  execution  of  the 
bond  and  mortgage  to  the  university  further  than  appeared  by  his 
books  and  other  memoranda  then  made  by  others;  and  he  does  not 
pretend  to  say  that  this  particular  statement  was  presented  to  him, 


Chap.  V]  Constant  vs.  Univeesitt.  565 

or  that  he  had  the  least  knowledge  of  its  existence,  or  of  the  facts 
therein  stated,  until  the  day  after  the  closing  of  the  transaction, 
and  the  execution  of  the  mortgage  to  the  university. 

This  is  every  particle  of  evidence  that  there  is  upon  which  a  find- 
ing could  be  based,  such  as  the  learned  judge  made  of  knowledge  or 
notice  on  the  part  of  Deane  of  the  existence  of  the  Constant  mort- 
gage at  the  time  of  the  transaction  with  the  university,  and  the 
execution  of  the  mortgage  to  it.  The  other  facts  in  the  case 
uncontradicted  are  that,  for  some  years  prior  to  January,  1884, 
Deane  and  the  plaintiffs*  decedent  were  acting  together,  and 
that  the  plaintiffs'  decedent  was,  weekly  and  even  almost 
daily,  in  the  habit  of  investing  large  amounts  of  money  upon 
mortgages  of  this  nature,  and  that  the  dealings  of  plaintiffs' 
decedent  in  these  various  building  mortgages,  through  Deane's 
office,  had  amounted,  at  the  time  of  the  mortgage  to  the  university, 
in  the  aggregate,  to  three  millions  of  dollars,  if  not  more;  that  the 
mortgages  were  of  all  sizes,  from  six  up  to  forty  thousand  dollars. 
It  also  appears  that  this  very  mortgage  in  suit  was  found  after  the 
execution  of  the  university  mortgage  in  a  pigeon-hole  in  which 
satisfied  mortgages  were  kept,  and  was  found  by  the  assignee  of 
Deane  after  the  assignment  was  made. 

There  was  no  proof  in  the  case  showing  that  Deane  made  any 
pretense  of  remembering,  at  the  time  of  the  execution  of  the  mort- 
gage to  the  university,  that  eleven  months  before  he  had  taken  a 
mortgage  on  the  same  property  for  the  plaintiffs'  decedent  which 
was  not  recorded.  Taking  into  consideration  the  enormous  amount 
of  business  done  by  Deane  for  Constant  of  this  same  general  nature, 
and  the  length  of  time  that  elapsed  since  the  taking  of  the 
Constant  mortgage  by  him,  and  the  fact  that  it  was  never  taken 
from  the  office  of  the  mortgagee,  and  that  it  remained  there  and 
was  found  in  a  pigeon-hole  appropriated  to  satisfied  mortgages, 
and  that  on  the  very  statement  in  question  upon  which  the  learned 
judge  evidently  based  his  finding  it  is  alluded  to  as  satisfied,  all  these 
facts  would  tend  to  show  very  strongly  that  Deane  had  no  recollec- 
tion whatever  of  the  existence  of  the  Constant  mortgage  as  an 
existing  lien  at  the  time  he  took  the  mortgage  to  the  university. 

But  the  burden  is  upon  the  plaintiff  to  prove,  clearly  and  beyond 
question,  that  he  did,  and  it  is  not  upon  the  defendant  to  show 
that  he  did  not,  have  such  recollection.  And  we  think  that  there 
is  a  total  lack  of  evidence  in  the  case  which  would  sustain  the  find- 
ing that  Deane  had  the  least  recollection  on  the  subject  at  the 


B66  Cases  on  Agency.  [Book  IV 

time  of  the  execution  of  the  university  mortgage.  Under  such 
circumstances,  we  think  it  impossible  to  impute  notice  to  the 
university,  or  knowledge  in  regard  to  a  fact  which  is  not  proved 
to  have  been  possessed  by  its  agent.  If  such  knowledge  did  not 
exist  in  Deane  at  the  time  of  his  taking  the  mortgage  to  the  uni- 
versity, then  the  latter  is  a  lona  fide  mortgagee  for  value,  and  its 
mortgage  should  be  regarded  as  a  prior  lien  to  that  of  the  unre- 
corded mortgage  of  Constant,  which  is  prior  in  point  of  date.  The 
plaintiffs  are  bound  to  show  by  clear  and  satisfactory  evidence  that 
when  this  mortgage  to  the  university  was  taken  by  Deane,  he  then 
had  knowledge,  and  the  fact  was  then  present  to  his  mind,  not 
only  that  he  had  taken  a  mortgage  to  Constant  eleven  months 
prior  thereto  on  the  same  premises,  which  had  not  been  recorded, 
but  that  such  mortgage  was  an  existing  and  valid  lien  upon  the 
premises,  which  had  not  been  in  any  manner  satisfied.  If  he 
recollected  that  there  had  been  such  a  mortgage,  but  honestly 
believed  that  it  was  or  had  been  satisfied,  then,  although  mistaken 
upon  that  point,  the  university  could  not  be  charged  with  knowl- 
edge of  the  existence  of  such  mortgage. 

Quite  a  strong  reason  for  not  imputing  knowledge  to  the  agent, 
in  this  case,  unless  upon  evidence  clear  and  satisfactory,  is,  that 
if  he  had  such  knowledge,  and  thus  knowingly  took  an  utterly 
worthless  security  for  his  principal,  he  acted  in  the  most  improper 
and  dishonest  manner,  and  wilfully  caused  a  loss  to  his  principal 
of  substantially  the  whole  amount  of  the  money  represented  by  the 
mortgage  which  he  took  as  a  second  lien.  While  this  consideration 
is  not  controlling,  if  the  evidence  justified  the  assumption,  it  is  yet 
of  considerable  weight,  and  adds  to  the  propriety  of  the  rule  requir- 
ing clear  proof  of  such  knowledge  at  the  very  time  of  taking  the 
mortgage  to  the  university. 

One  other  question  has  been  argued  before  us  which  has  been 
the  subject  of  a  good  deal  of  thought.  It  is  this:  Assuming  that 
Deane  had  knowledge  of  the  existence  of  the  Constant  mortgage 
at  the  time  of  the  execution  of  the  mortgage  to  the  university, 
is  his  knowledge  to  be  imputed  to  the  university,  considering  the 
position  Deane  occupied  to  both  mortgagees? 

While  acting  as  the  agent  of  Constant  in  taking  the  mortgage  in 
question  as  security  for  the  funds  which  he  was  investing  for  him, 
it  was  the  duty  of  Deane  to  see  that  the  moneys  were  safely  and 
securely  invested.  The  value  of  the  property  was  between  eleven 
thousand  and  twelve  thousand  dollars;   and  it  was  obviously  the 


Chap.  V]  Constant  vs.  University.  667 

duty  of  Deane  to  see  to  it  that  the  mortgage  which  he  took  upon  such 
property  as  a  security  for  a  loan  of  six  thousand  dollars  for  Con- 
stant should  be  a  first  lien  thereon.  Whitney  vs.  Marti ne,  88  N. 
Y.  535.  In  order  to  become  such  first  lien,  it  was  the  duty  of 
Deane  to  see  to  it  that  the  Constant  mortgage  was  first  recorded. 
In  January,  1884,  when  acting  as  agent  for  the  university  to  invest 
its  moneys,  he  owed  the  same  duty  to  the  university  that  he  did  to 
Constant,  and  it  was  his  business  to  see  to  it  that  the  security 
which  he  took  was  a  safe  and  secure  one.  Neither  mortgage  was 
Bafe  or  secure  if  it  were  a  subsequent  lien  to  the  other  upon  this 
property.  This  duty  he  continued  to  owe  to  Constant  at  the  time 
he  took  the  mortgage  to  the  university. 

At  the  time  of  the  execution  of  the  latter  mortgage,  therefore, 
he  owed  conflicting  duties  to  Constant,  and  to  the  university  the 
duty  in  each  case  being  to  make  the  mortgage  to  each  principal  a 
first  lien  on  the  property.  Owing  these  conflicting  duties  to  two 
different  principals,  in  two  separate  transactions,  can  it  be  prop- 
erly said  that  any  knowledge  coming  to  him  in  the  course  of  either 
transaction  should  be  imputed  to  his  principal?  Can  any  agent 
occupying  such  a  position  bind  either  principal  by  constructive 
notice?  It  has  been  stated  that  in  such  a  case,  where  an  agent 
thus  owes  conflicting  duties,  the  security  which  is  taken  or  the 
act  which  is  performed  by  the  agent  may  be  repudiated  by  his 
principal  when  he  becomes  aware  of  the  position  occupied  by  such 
agent.     Story  on  Agency,  sec.  210. 

The  reason  for  this  rule  is,  that  the  principal  has  the  right  to 
the  best  efforts  of  his  agent  in  the  transaction  of  the  business  con- 
nected with  his  agency;  and  where  the  agent  owes  conflicting 
duties,  he  cannot  give  that  which  the  principal  has  a  right  to 
demand,  and  which  he  has  impliedly  contracted  to  give.  Ought 
the  university  to  be  charged  with  notice  of  the  existence  of  this 
prior  mortgage  when  it  was  the  duty  of  its  agent  to  procure  for  it 
a  first  lien,  while,  at  the  same  time,  in  his  capacity  as  agent  for 
Constant,  it  was  equally  his  duty  to  give  to  him  the  prior  lien? 
Which  principal  should  he  serve?  There  have  been  cases  where, 
in  the  sale  and  purchase  of  the  same  real  estate,  both  parties  have 
employed  the  same  agent,  and  it  has  been  held,  under  such  cir- 
cumstances, that  the  knowledge  of  the  agent  was  to  be  imputed  to 
both  of  his  principals. 

If,  with  a  full  knowledge  of  the  facts  that  his  own  agent  was  the 
agent  of  another,  each  principal  retained  him  in  his  employment. 


5C8  Cases  on  Agency.  [Book  IV 

we  can  see  that  there  would  be  propriety  in  so  holding;  for  each 
then,  notes  the  position  which  the  agent  has  with  regard  to  the 
other,  and  each  takes  the  risk  of  having  impnted  to  him  whatever 
knowledge  the  agent  may  have  on  the  subject.  See  Le  Neve  vs. 
Le  Neve,  1  Amb.  436,  Haedwicke,  chancellor,  decided  in  1747; 
Toulmin  vs.  Steer e,  3  Mer.  209,  decided  in  1817,  by  Sir  Walter 
Grant,  master  of  the  rolls.  The  case  of  Nixon  vs.  Hamilton, 
already  referred  to,  decided  by  Lord  Plunket,  lord  chancellor  in 
the  Irish  court  of  chancery,  in  1838  (2  Dru.  &  Walsh,  364),  is  a 
case  in  many  respects  somewhat  like  the  one  at  bar,  so  far  as  this 
principle  is  concerned,  if  it  be  assumed  that  Deane  really  had  the 
knowledge  of  the  prior  mortgage  as  an  existing  lien.  It  will  be 
observed,  however,  upon  examination  of  it,  that  the  question 
whether  the  knowledge  of  the  common  agent  in  two  different 
transactions,  with  two  different  principals,  was  notice  to  the  second 
principal,  was  not  raised  with  reference  to  this  particular  ground. 

The  whole  discussion  was  upon  the  subject  of  imputing  the 
knowledge  of  the  agent  to  the  second  mortgagee,  of  the  existence  of 
the  prior  mortgage,  which  knowledge  was  not  obtained  in  the  last 
transaction.  Whether  such  knowledge  should  or  should  not  be 
imputed  to  the  second  mortgagee,  because  of  the  conflicting  duties 
owed  by  the  common  agent,  was  not  raised.  The  only  defense  set 
up  was,  that  the  information  did  not  come  to  the  agent  of  the  second 
mortgagee,  in  the  course  of  transacting  the  business  of  the  second 
mortgagee,  and  the  question  was  simply  whether  such  knowledge 
could  be  imputed  to  the  second  mortgagee  because  of  the  knowl- 
edge acquired  by  his  agent  at  another  time,  in  another  transaction, 
with  another  principal.  The  court  held  that  where  it  appeared, 
as  in  this  case  it  did  appear,  fully  and  plainly  that  the  matter  was 
fresh  in  the  recollection,  and  fully  within  the  knowledge  of  the  agent, 
and  under  such  circumstances  that  it  was  a  gross  fraud  on  the  part  of 
the  agent,  in  the  first  place  in  keeping  a  prior  mortgage  off  the 
record,  and  in  the  second  place,  in  not  communicating  the  knowl- 
edge which  he  had  to  his  principal,  the  second  mortgagee,  that  in 
such  case  the  second  mortgagee  was  charged  with  the  knowledge 
of  his  agent. 

Whether  the  same  result  would  have  been  reached  if  the  other 
ground  had  been  argued,  we  cannot,  of  course,  assume  to  decide. 
I  have  found  no  case  precisely  in  point  where  the  subject  has  been 
discussed  and  decided  either  way.  I  have  very  grave  doubts  as  to 
the  propriety  of  holding  in  the  case  of  an  agent,  situated  as  I  have 


Chap.  V]  Constant  vs.  Universitt.  669 

stated,  that  his  principal  in  the  second  mortgage  shonld  be  charged 
with  the  knowledge  which  such  agent  acquired  in  another  trans- 
action at  a  different  time  while  in  the  employment  of  a  different 
principal,  and  where  his  duties  to  such  principal  still  existed  and 
conflicted  with  his  duty  to  his  second  principal.  We  do  not  deem 
it,  however,  necessary  to  decide  the  question  in  this  case. 

For  the  reasons  already  given,  the  judgment  should  be  reversed, 
and  a  new  trial  ordered,  with  costs  to  abide  the  event. 

Note. — See  following  case. 


(139  Massachusetts,  332,  52  Am.  Eep.  710.) 

INNERARITY  vs.  MERCHANTS'  NATIONAL  BANK. 

(Supreme  Judicial  Court  of  Massachusetts,  May,  1885. J 

Plaintiffs  shipped  a  cargo  to  one  Burgess  for  sale  on  their  account. 
The  bill  of  lading  consigned  the  goods  to  the  order  of  Burgess. 
Burgess  fraudulently  pledged  the  bill  of  lading  to  defendant  bank 
to  secure  a  loan  to  himself.  Burgess  was  one  of  the  directors  of 
the  bank  and  met  with  them  at  the  time  they  approved  this  loan, 

E.  D.  Sohier  and  F.  L.  Hayes,  for  plaintiff. 
8.  Bartlett,  and  L.  8.  Dainey,  for  defendant. 

Devens,  J.  (After  stating  the  facts.)  This  transfer  by  Burgess 
&  Sons  of  the  sugar  was  a  fraud  upon  the  plaintiffs;  but  it  is  not 
contended  that  it  in  any  way  failed  to  convey  a  full  title  in  pledge 
to  the  defendant  bank,  unless  under  the  circumstances  the  bank  is 
to  be  charged  with  the  knowledge  of  Burgess.  The  plaintiffs 
requested  the  presiding  judge  to  rule  that  if  Burgess  Avas  present  as 
a  director  when  said  loan  was  acted  upon  by  the  board  of  directors, 
his  knowledge  of  the  plaintiffs'  title  to  the  sugar,  and  that  the 
firm  of  Burgess  &  Sons  had  no  right  to  pledge  it,  was  the  knowl- 
edge of  the  defendant  bank.  This  ruling  was  refused  by  the  presid- 
ing judge,  who  found  for  the  defendant. 

AVhile  the  knowledge  of  an  agent  is  ordinarily  to  be  imputed  to 
the  principal  it  would  appear  now  to  be  well  established  that  there 
b  an  exception  to  the  construction  or  imputation  of  notice  from 
the  agent  to  the  principal  in  case  of  such  conduct  by  the  agent  as 


570  Cases  on  Agency.  [Book  IV 

raises  a  clear  presnmption  that  lie  would  not  commnnicate  the  fact 
in  controversy,  as  where  the  communication  of  such  a  fact  would 
necessarily  prevent  the  consummation  of  a  fraudulent  scheme 
which  the  agent  was  engaged  in  perpetrating.  Kennedy  vs.  Greeny 
3  Myl.  &  K.  699-  Cave  vs.  Cave,  15  Oh.  D.  639;  In  re  Euro2Jean 
Bank,  L.  R.  5  Ch.  358;  In  re  Marseilles  Extension  lUnhvay,  L.  E. 
7  Ch.  161;  Atlantic  National  Bank  vs.  Harris,  118  Mass.  147; 
Loving  vs.  Brodie,  134  Mass.  453. 

One  of  the  most  recent  cases  on  this  point  is  Dillaway  vs.  Butler, 
135  Mass.  479.  A,  to  whom  B  was  indebted,  advised  0  to  lend 
money  to  B  on  the  security  of  a  mortgage  of  personal  property,  and 
acted  as  O's  agent  in  completing  the  transaction.  With  the  money 
thus  obtained,  B  paid  A  the  debt  he  owed  him.  Both  A  and  B 
acted  in  fraud  of  the  General  Statutes,  chap.  118,  sees.  89,  91;  but 
0.  had  no  knowledge  of  the  fraud.  It  was  held  that  the  knowledge 
of  A  was  not  in  law  imputable  to  0,  although  A  had  acted  for  0 
in  the  negotiation. 

But  the  question  in  the  case  at  bar  is  not  so  much  what  are  the 
responsibilities  of  a  principal  for  an  agent,  as  whether  Burgess  can 
be  considered  in  any  proper  sense  as  an  agent  for  the  defendant 
bank  in  the  transaction  of  the  loan,  even  if  directors  are  ordinarily 
to  be  treated  as  such.  The  plaintiffs  seek  to  impute  to  the  cor- 
poration knowledge  of  a  fraud,  because  in  a  contract  made  avow- 
edly not  for  it,  but  for  himself,  and  necessarily  acting  adversely 
to  its  interests,  a  director  was  aware  that  he  was  committing  a 
fraud.  This  in  effect  is  to  say  that  there  can  be  no  transaction 
between  a  bank  and  one  of  its  directors  in  which,  so  far  as  the 
transfer  of  property  is  concerned,  the  bank  can  be  protected,  if 
there  is  fraud  on  the  part  of  the  director,  and  that  the  bank  can 
never  discount  paper  on  which  one  of  its  directors  is  a  party,  and 
retain  the  position  of  an  innocent  indorsee  for  value  under  the  law 
merchant. 

A  bank  or  other  corporation  can  act  only  through  agents,  and 
it  is  generally  true,  that  if  a  director  who  has  knowledge  of  the 
fraud  or  illegality  of  the  transaction  acts  for  the  bank,  as  in  dis- 
counting a  note,  his  act  is  that  of  the  bank,  and  it  is  affected  by 
his  knowledge.  National  Security  Bank  vs.  Cushman,  121  Mass. 
490.  But  this  principle  can  have  no  application  where  the  director 
of  the  bank  is  the  party  himself  contracting  with  it.  In  such  case 
the  position  he  assumes  conflicts  entirely  with  the  idea  that  here  pre- 
sents the  interests  of  the  bank.     To  hold  otherwise  might  sanction 


Ohap.  V]  Inneeaeity  vs.  Kat'l  Bank.  671 

gross  frauds,  by  imputing  to  the  bank  a  knowledge  those  properly 
representing  it  could  not  have  possessed.  Whether  Burgess  acted  or 
not  at  the  meeting  of  the  directors  in  the  matter  of  the  loan,  he 
could  not  lawfully  have  done  so  as  the  representative  of  the  bank. 
His  individual  interest  was  distinctly  antagonistic;  and  the  question 
before  the  board  related  to  its  approval  of  a  provisional  transaction 
between  himself  and  the  president  of  the  bank,  in  which  he  was 
the  proposed  borrower  and  the  bank  was  to  be  the  lender. 

A  director  offering  a  note  of  which  he  is  the  owner  for  discount, 
or  proposing  for  a  loan  of  money  on  collateral  security  alleged  to 
be  his  own  property,  stands  as  a  stranger  to  it.  That  a  joint  stock 
bank,  says,  in  substance.  Sir  W.  M.  James,  should  have  imputed 
to  it  the  knowledge  which  the  director  has  of  his  own  private  affairs, 
is  a  most  unreasonable  proposition.  In  re  Marseilles  Extension 
Railway,  L.  R.  7  Ch.  170.  The  relation  which  a  director,  who  is 
himself  acting  for  another  in  a  negotiation  with  a  bank,  occupies 
toward  it  was  considered  in  Wasldngton  Bank  vs.  Leivis,  22  Pick, 
24,  where  it  was  argued,  that  although  he  was  not  the  agent  of  the 
bank  yet  his  knowledge  of  facts  showing  the  note  to  be  invalid  was 
that  of  the  bank,  "  Whatever  a  director  or  other  agent  of  a  bank,'' 
Bay  the  court,  **  may  do  within  the  scope  of  his  authority  would 
bind  the  bank  so  as  to  make  them  responsible  to  the  person  dealt 
with.  But  in  the  present  case  Thompson  was  the  party  applying 
for  the  discount,  and  was  not  acting  as  director  nor  could  he  with 
any  propriety  so  act.  He  was  the  party  with  whom  the  bank  con- 
tracted in  discounting  the  note,  and  to  whom  the  money  was  paid." 

The  proposition  that  a  director  of  a  corporation  acting  avowedly 
for  himself,  or  on  behalf  of  another  with  whom  he  is  interested  in 
any  transaction,  cannot  be  treated  as  the  agent  of  the  corporation 
therein,  is  well  sustained  by  authority.  SI  ration  vs.  Allen,  1  C. 
E.  Green,  229;  Barnes  vs.  Trenton  Gas  Light  Co.,  12  C.  E.  Green, 
33;  Higlitstoiun  Banh  vs.  Christopher,  40  N.  J.  L.  435;  Winchester 
vs.  Baltimore  &  Susquehanna  Railroad,  4  Md.  231;  Wicker  sham 
vs.  Chicago  Zinc  Co.,  18  Kans.  41,  26  Am.  Rep.  784;  Seneca 
County  Bank  vs.  Neass,  5  Denio,  329,  337;  Third  National  Bank 
vs.  Harrison,  10  Fed.  Rep.  243;  Stevenson  vs.  Bay  City,  26  Mich. 
44;  In  re  Marseilles  Extension  Raihvay,  uhi  supra;  In  re  European 
Bank,  uhi  supra.  In  some  of  these  cases  weight  appears  to  be 
given  to  the  fact  that  the  director  was  not  actually  present  at  the 
meeting  when  the  transaction  was  concluded,  but  this  cannot  be 
of  importance.     If  it  were  shown  that  Burgess  urged  the  loan  upon 


572  Cases  oif  Agexcy.  [Book  IV 

the  board  of  directors,  and  actually  voted  in  favor  of  it,  his 
associates  not  seeing  fit  to  intervene  or  object  to  this  conduct,  he 
would  still  have  acted  on  his  own  behalf,  and  of  those  whose  inter- 
ests and  efforts  were  of  necessity  adverse  to  those  of  the  corpora- 
tion. To  assume  that  under  such  circumstances  the  facts  he  knew 
were  communicated  to  the  directors,  and  that  he  had  laid  before 
them  the  fraud  he  was  committing  in  wrongfully  pledging  property, 
would  be  a  presumption  too  violent  for  belief,  and  would  do  great 
injustice  to  the  remaining  directors  and  the  interests  they 
represented. 

While  the  current  of  authority  is  in  favor  of  the  conclusion  we 
have  reached,  two  cases  are  much  relied  on  by  the  plaintiffs  which 
were  not  overlooked  in  the  opinions  delivered  in  several  of  the  cases 
cited  above,  and  which  have  not  there  commanded  approval.  These 
are  Vnited  States  BanTc  vs.  Davis,  2  Hill,  451,  and  Union  Bank 
vs.  Cam2Jbell,  4  Humph.  394.  In  each  of  these  cases  it  was  held 
that  the  knowledge  of  a  director  of  what  was  held  to  invalidate  a 
contract  was  to  be  imputed  to  the  bank.  In  neither  of  these  cases 
was  the  director  whose  knowledge  was  imputed  to  the  bank  the 
adverse  contracting  party,  which  would  perhaps  distinguish  them 
sufficiently  from  the  case  at  bar.  But  in  each  of  them  the  director 
acted  for  the  person  contracting  with  the  bank,  and  thus  secured 
to  himself  important  advantage;  and  we  are  not  prepared  to  assent 
to  the  proposition  that  a  director  thus  acting  is  competent  to  affect 
with  his  knowledge  of  fraud  the  bank  whose  director  he  is.  His 
interests  and  conduct  are  adverse  to  it,  and  his  position  forbids  that 

he  should  be  treated  as  its  representative. 

Exceptions  overruled. 


( 119  United  States,  99.) 

VICKSBURG  &  MERIDIAN  RAILROAD  vs.  O'BRIEN. 

(Supreme  Court  of  the  United  States,  November,  18S6.J 

Action  to  recover  damages  for  personal  injury.  Verdict  for 
plaintiff. 

Hoadly,  Johnson  &  Colston,  and  Win,  Nugent,  for  plaintiff  in 
error. 

Thos.  C.  CatcMngs,  for  defendant  in  error. 


Ohap.  V]     ViCKSBUKG  &  Meeidian  R.  R.  vs.  O'Beiek.         673 

Harlan,  J.  (After  disposing  of  a  preliminary  qnestion.)  At 
the  trial  below,  plaintiffs  introduced  one  Roach  as  a  witnesB,  who, 
during  his  examination,  was  asked  whether  he  did  not,  shortly 
after  the  accident,  have  a  conversation  with  the  engineer  having 
charge  of  defendant's  train  at  the  time  of  the  accident,  about  the 
rate  of  speed  at  which  the  train  was  moving  at  the  time.  To  that 
qnestion  the  defendant  objected,  but  its  objection  was  overruled, 
and  the  witness  permitted  to  answer.  The  witness  had  previously 
stated  that,  on  examination  of  the  track  after  the  accident,  he 
found  a  cross-tie  or  cross-ties  under  the  broken  rail  in  a  decayed 
condition.  His  answer  to  the  above  question  was:  *•  Between  ten 
and  thirty  minutes  after  the  accident  occurred,  I  had  such  a  con- 
versation with  Morgan  Herbert,  the  engineer  having  charge  of  the 
locomotive  attached  to  the  train  at  the  time  of  the  accident,  and 
he  told  me  that  the  train  was  moving  at  the  rate  of  eighteen  miles 
an  hour,'' 

The  defendant  renewed  its  objection  to  this  testimony  by  a 
motion  to  exclude  it  from  the  jury.  This  motion  was  denied,  and 
the  exception  taken.  As  bearing  upon  the  point  here  raised,  it 
may  be  stated  that,  under  the  evidence,  it  became  material — apart 
from  the  issue  as  to  the  condition  of  the  track — to  inquire  whether, 
at  the  time  of  the  accident  (which  occurred  at  a  place  on  the  line 
where  the  rails  in  the  track  were,  according  to  some  of  the  proof, 
materially  defective),  the  train  was  being  run  at  a  speed  exceeding 
fifteen  miles  an  hour.  In  this  view,  the  declaration  of  the  engi- 
neer may  have  had  a  decisive  influence  upon  the  result  of  the  trial. 

There  can  be  no  dispute  as  to  the  general  rules  governing  the 
admissibility  of  the  declarations  of  an  agent  to  affect  the  principal. 
The  acts  of  an  agent,  within  the  scope  of  the  authority  delegated 
to  him,  are  deemed  the  acts  of  the  principal.  Whatever  he  does 
in  the  lawful  exercise  of  that  authority  is  imputable  to  the  princi- 
pal, and  may  be  proven  without  calling  the  agent  as  a  witness. 
So,  in  consequence  of  the  relation  between  him  and  the  principal, 
his  statement  or  declaration  is,  under  some  circumstances,  regarded 
as  of  the  nature  of  original  evidence,  "being,"  says  Phillips,  ''the 
ultimate  fact  to  be  proved,  and  not  an  admission  of  some  other 
fact."    1  Phil.  Ev.  381. 

*'  But  it  must  be  remembered,*'  says  Greenleaf,  **  that  the  admis- 
sion of  the  agent  cannot  always  be  assimilated  to  the  admission  of 
tho  principal.  The  party's  own  admission,  whenever  made,  may 
be  given  in  evidence  against  him;  but  the  admission  or  declaration 


574  Cases  on  AoENcr.  [Book  IV 

of  his  agent  binds  him  only  when  it  is  made  dnring  the  continuance 
of  the  agency  in  regard  to  a  transaction  then  depending,  et  dum 
fervet  opus.  It  is  because  it  is  a  verbal  act  and  part  of  the  res  gestcB 
that  it  is  admissible  at  all;  and,  therefore,  it  is  not  necessary  to 
call  the  agent  to  prove  it;  but  wherever  what  he  did  is  admissible 
in  evidence,  there  it  is  competent  to  prove  what  he  said  about  the 
act  while  he  was  doing  it."  1  Greenleaf,  §  113.  This  court  had 
occasion  in  Packet  Co.  vs.  Cloiigh,  20  Wall.  540,  to  consider  this 
question.  Eeferring  to  the  rule  as  stated  by  Mr.  Justice  Story 
in  his  treatise  on  Agency,  §  134,  that,  *'  Where  the  acts  of  the 
agent  will  bind  the  principal,  there  his  representations,  declara- 
tions, and  admissions  respecting  the  subject-matter  will  also  bind 
him,  if  made  at  the  same  time,  and  constitutinq  pnrt  of  the  res 
gestm"  the  court,  speaking  by  Mr.  Justice  Story,  said:  "A  close 
attention  to  this  rule,  which  is  of  universal  acceptance,  will  solve 
almost  every  difliculty.  But  an  act  done  by  an  agent  cannot  be 
varied,  qualified,  or  explained,  either  by  his  declarations,  which 
amount  to  no  more  than  a  mere  narrative  of  a  past  occurrence,  or 
by  an  isolated  conversation  held,  or  an  isolated  act  done,  at  a  later 
period.  The  reason  is,  that  the  agent  to  do  the  act  is  not  author- 
ized to  narrate  what  he  had  done,  or  how  he  had  done  it,  and  his 
declaration  is  no  part  of  the  res  gestce.'* 

We  are  of  opinion  that  the  declaration  of  the  engineer  Herbert, 
to  the  witness  Eoach,  was  not  competent  against  the  defendant  for 
the  purpose  of  proving  the  rate  of  speed  at  which  the  train  was 
moving  at  the  time  of  the  accident.  It  is  true  that,  in  view  of  the 
engineer's  experience  and  position,  his  statements  under  oath,  as  a 
witness,  in  respect  to  that  matter,  if  credited,  would  have  influence 
with  the  jury.  Although  the  speed  of  the  train  was  in  some 
degree,  subject  to  his  control,  still  his  autliority  in  that 
respect  did  not  carry  with  it  authority  to  make  declarations 
or  admissions  at  a  subsequent  time,  as  to  the  manner  in  which, 
on  any  particular  trip,  or  at  any  designated  point  in  his  route, 
he  had  performed  his  duty.  His  declaration,  after  the  accident 
had  become  a  complete  fact,  and  when  he  was  not  performing  the 
duties  of  engineer,  that  the  train,  at  the  moment  the  plaintiff  was 
injured,  was  being  run  at  the  rate  of  eighteen  miles  an  hour,  was 
not  explanatory  of  anything  in  which  he  was  then  engaged.  It  did 
not  accompany  the  act  from  which  the  injuries  in  question  arose. 
It  was,  in  its  essence,  the  mere  narration  of  a  past  occurrence,  not 
a  part  of  tiie  res  gestm,  simply  an  assertion  or  representation,  in  the 


Chap.  V  ]     VicKSBUEG  &  Meridian  R.  R.  vs.  0*Brien.         675 

course  of  conversation,  as  to  a  matter  not  then  pending,  and  in 
respect  to  wliicli  his  authority  as  engineer  had  fully  heen  exerted. 
It  is  not  to  be  deemed  part  of  the  res  gestcB,  simply  becanse  of  the 
brief  period  intervening  between  the  accident  and  the  making  of 
the  declaration. 

The  fact  remains  that  the  occurrence  had  ended  when  the 
declaration  in  question  was  made,  and  the  engineer  was  not  in  the 
act  of  doing  anything  that  could  possibly  aHect  it.  If  his  declara- 
tion had  been  made  the  next  day  after  the  accident,  it  would 
scarcely  be  claimed  that  it  was  admissible  evidence  against  the 
company.  And  yet  the  circumstance  that  it  was  made  between 
ten  and  thirty  minutes — an  appreciable  period  of  time — after  the 
accident,  cannot,  upon  principle,  make  this  case  an  exception  to 
the  general  rule.  If  the  contrary  view  shall  be  maintained,  it 
would  follow  that  the  declarations  of  the  engineer,  if  favorable  to 
the  company,  would  have  been  admissible  in  its  behalf  as  part  of 
the  res  gestce,  vfiihoui  calling  him  as  a  witness — a  proposition  that 
will  find  no  support  in  the  law  of  evidence.  The  cases  have  gone 
far  enough  in  the  admission  of  the  subsequent  declarations  of 
agents  as  evidence  against  their  principals. 

These  views  are  fully  sustained  by  adjudications  in  the  highest 
courts  of  the  states.  Luhy  vs.  Hudson  River  Railroad,  17  N.  Y. 
131;  Pennsylvania  Railroad  vs.  Brooks,  57  Pcnn.  St.  339,  343; 
98  Am.  Dec.  229;  Dietrich  vs.BaUimore,  etc.,  Railroad,  58  Md.  347, 
355;  Lane  vs.  Bryant,  9  Gray,  245,  s.  c,  69  Am.  Dec.  282;  Chicago, 
Burlington,  etc.  Railroad  vs.  Riddle,  60111.  534;  Virginia  d  Tennes- 
see Railroad  vs.  Sayers,  26  Gratt.  328,  351;  Chi.  &  N.  W.  Railroad 
vs.Fillmore,bll\\.2Q>h',  Mich.Central  Railroad  vs.  Coleman,  28  Mich. 
440,  446;  MoMle  &  Montgomery  Railroad  vs.  Ashcraft,  48  Ala.  15, 
30;  Bellcfontaine  Railway  vs.  Hunter,  33  Ind.  335,  354,  5  Am.  Rep. 
201;  Adams  vs.  Hannibal  &  S.  J.  Railroad,  74  Mo.  553,  556,  41 
Am.  Rep.  333;  Kan.  &  Pacific  Railroad  vs.  Pointer,  9  Kan.  620, 
630;  Roberts  vs.  Burks,  Litt.  (Ky.)  Select  Gas.  411,  s.  c,  12  Am. 
Dec.  325;  Hawker  vs.  Baltimore  &  Ohio  Railroad,  15  West  Va. 
628,  636,  36  Am.  Rep.  825.  See,  also,  1  Taylor,  Ev.,  7th  Eng. 
ed.,  §  G02. 

"We  deem  it  unnecessary  to  notice  other  exceptions  taken  to  the 
action  of  the  court  below. 

This  case  was  decided  at  the  last  term  of  this  court,  and  Mr. 
Justice  Woods  concurred  in  the  order  of  reversal  upon  the  grounds 
herein  stated. 


676  Cases  on  Agenot.  [Book  IV 

For  the  errors  indicated  the  judgment  is  reyersed  and  the  cause 
remanded  for  a  new  trial,  and  for  further  proceedings  consistent 
•with  this  opinion. 

Field,  Miller,  and  Blatchfoed,  J.  J.,  and  Waite,  C.  J., 
dissented,  saying:  The  modern  doctrine  has  relaxed  the  ancient 
rule  that  declarations,  to  be  admissible  as  part  of  the  res  gestcB, 
must  be  strictly  contemporaneous  with  the  main  transaction.  It 
now  allows  evidence  of  them  when  they  appear  to  have  been  made 
under  the  immediate  influence  of  the  principal  transaction,  and 
are  so  connected  with  it  as  to  characterize  or  explain  it. 

Note. — In  People  va.  Vernon,  35  Cal.  49,  95  Am.  Dec.  50,  it  is  said: 
"  Declarations  to  be  a  part  of  the  res  gestce  are  not  required  to  be  precisely 
concurrent  in  poiat  of  time  with  the  principal  fact;  if  they  spring  out  of 
the  principal  transaction,  if  they  tend  to  explain  it,  are  voluntary  and 
spontaneous,  and  are  made  at  a  time  so  near  it  as  to  preclude  the  idea  of 
deliberate  design,  then  they  are  to  be  regarded  as  contemporaneous  and  are 
admissible."  To  same  effect  is  Keyser  vs.  Chicago  <&  Q.  T.  Ry,  Co.,  66 
Mich.  890,  citing  many  other  cases. 


II. 

LIABILITY  OF  PRINCIPAL  IN  TORT. 


(106    New   York,    195,    60   Am.    Rep.    440.) 

BANK  OF  BATAVIA  vs.  NEW  YORK,  LAKE  ERIE  AND 
WESTERN    RAILROAD    COMPANY. 

(New  York  Court  of  Appeal,  June,  18S7.J 

Action  of  damages  for  wrongful  issue  of  bill  of  lading.  The 
opinion  states  the  facts.     The  plaintilf  had  judgment  below. 

E.  C.  Sprague,  for  appellant. 
H.  E.  Sickels,  for  respondent. 

Finch,  J.  It  is  a  settled  doctrine  in  the  law  of  agency  in  this 
state  that  where  the  principal  has  clothed  his  agent  with  power  to 
do  an  act  upon  the  existence  of  some  extrinsic  fact,  necessarily  and 
peculiarly  within  the  knowledge  of  the  agent,  and  of  the  existence 
of  which  the  act  of  executing  the  power  is  itself  a  representation,  a 
third  person  dealing  with  such  agent  in  entire  good  faith,  pursuant 


Chap.  V  ]       Bank  of  Batavia  vs.  Railroad  Co.  577 

to  the  apparent  power,  may  rely  npon  the  representation,  and  the 
principal  is  estopped  from  denying  its  truth  to  his  prejudice. 
North  River  Banh  vs.  Aymar,  3  Hill,  2G2;  Qriswold  vs.  Haven, 
25  N.  Y.  595,  GOl,  82  Am.  Dec.  380;  N.  V.  S  N.  H.  R.  Co.  vs. 
Schuyler,  34  N.  Y.  30;  Armour  vs.  M.  C.  R.  Co.  65  N.  Y.  11,  22 
Am.  Eep.  603. 

A  discussion  of  this  doctrine  is  no  longer  needed  or  permissible 
in  this  court,  since  it  has  survived  an  inquiry  of  the  most  exhaust- 
ive character,  and  an  assault  remarkable  for  its  persistence  and 
vigor.  If  there  be  any  exception  to  the  rule  within  our  jurisdic- 
tion, it  arises  in  the  case  of  municipal  corporations,  whose  struc- 
ture and  functions  are  sometimes  claimed  to  justify  a  more 
restricted  liability.  The  application  of  this  rule  to  the  case  at  bar 
has  determined  it  in  favor  of  the  plaintiffs,  and  we  approve  of  that 
conclusion. 

One  Weiss  was  the  local  freight  agent  of  the  defendant  corpora- 
tion at  Batavia,  whose  duty  and  authority  it  was  to  receive  and  for- 
ward freight  over  the  defendant's  road,  giving  a  bill  of  lading 
therefor,  specifying  the  terms  of  shipment,  but  having  no  right  to 
issue  such  bills  except  upon  the  actual  receipt  of  the  property  for 
transportation.  He  issued  bills  of  lading  for  sixty-five  barrels  of 
beans  to  one  Williams,  describing  them  as  received  to  be  forwarded 
to  one  Comstock,  as  consignee,  but  adding  with  reference  to  the 
packages  that  their  contents  were  unknown.  Williams  drew  a 
draft  on  the  consignee,  and  procured  the  money  upon  it  of  the 
plaintiff  by  transferring  the  bills  of  lading  to  secure  its  ultimate 
payment.  It  turned  out  that  no  barrels  of  beans  were  shipped  by 
Williams,  or  delivered  to  the  defendant,  and  the  bills  of  lading  were 
the  product  of  a  conspiracy  between  him  and  Weiss  to  defraud  the 
plaintiff  or  such  others  as  could  be  induced  to  advance  their  money 
upon  the  faith  of  the  false  bills. 

It  is  proper  to  consider  only  that  part  of  the  learned  and  very 
able  argument  of  the  appellant's  counsel  which  questions  the  appli- 
cation of  the  doctrine  above  stated  to  the  facts  presented.  So  much 
of  it  as  rests  upon  the  ground  that  no  privity  existed  between  the 
defendant  and  the  bank  may  be  dismissed  with  the  observation  that 
no  privity  is  needed  to  make  the  estoppel  available  other  than  that 
which  flows  from  the  wrongful  act  and  the  consequent  injury.  N. 
Y.  (&  N.  H.  R.  Co.  vs.  Schuyler,  supra. 

While  bills  of  lading  are  not  negotiable  in  the  sense  applicable 
37 


578  Oases  on  Agency,  [Book  IV 

to  commercial  paper,  they  are  very  commonly  transferred  as 
security  for  loans  and  discounts,  and  carry  with  them  the  owner- 
ship, either  general  or  special,  of  the  property  which  they  describe. 
It  is  the  natural  and  necessary  expectation  of  the  carrier  issuing 
them  that  they  will  pass  freely  from  one  to  another  and  advances 
be  made  upon  their  faith,  and  the  carrier  has  no  right  to  believe, 
and  never  does  believe,  that  their  ofiBce  and  effect  is  limited  to  the 
person  to  whom  they  are  first  and  directly  issued.  On  the  contrary, 
he  is  bound  by  law  to  recognize  the  validity  of  transfers  and  to 
deliver  the  property  only  upon  the  production  and  cancellation  of 
the  bill  of  lading. 

If  he  desires  to  limit  his  responsibility  to  a  delivery  to  the  named 
consignee  alone,  he  must  stamp  his  bills  as  *' non-negotiable;"  and 
where  he  does  not  do  that  he  must  be  understood  to  intend  a 
possible  transfer  of  the  bills  and  to  affect  the  action  of  such  trans- 
ferees. In  such  a  case  the  facts  go  far  beyond  the  instances  cited, 
in  which  an  estoppel  has  been  denied  because  the  representations 
were  not  made  to  the  party  injured.  Mayeiiborg  vs.  Ilaynes,  50 
N.  Y.  675;  Maguire  vs.  Sehlon,  103  N.  Y.  642. 

Those  were  cases  in  which  the  representations  made  were  not 
intended  and  could  not  be  expected  to  influence  the  persons  who 
relied  upon  them,  and  their  knowledge  of  them  was  described  as 
purely  accidental  and  not  anticipated.  Here  they  were  of  a 
totally  different  character.  The  bills  were  made  for  the  precise 
purpose,  so  far  as  the  agent  and  Williams  were  concerned,  of 
deceiving  the  bank  by  their  representations,  and  every  bill  issued 
not  stamped  was  issued  with  the  expectation  of  the  principal  that 
it  would  be  transferred  and  used  in  the  ordinary  channels  of  busi- 
ness, and  be  relied  upon  as  evidence  of  ownership  or  security  for 
advances.  Those  thus  trusting  to  it  and  affected  by  it  are  not 
accidentally  injured,  but  have  done  what  they  who  issued  the  bill 
had  every  reason  to  expect.  Considerations  of  this  character  pro- 
vide the  basis  of  an  equitable  estoppel,  without  reference  to  nego- 
tiability or  directness  of  representation. 

It  is  obvious  also  upon  the  case  as  presented,  that  the  fact  or  con- 
dition essential  to  the  authority  of  the  agent  to  issue  the  bills  of 
lading  was  one  unknown  to  the  bank  and  peculiarly  within  the 
knowledge  of  the  agent  and  his  principal.  If  the  rule  compelled 
the  transferee  to  incur  the  peril  of  the  existence  or  absence  of  the 
essential  fact,  it  would  practically  end  the  large  volume  of  business 


Chap.  V]        Bank  of  Batavia  vs.  Railroad  Co.  579 

founded  upon  transfers  of  bills  of  lading.  Of  whom  shall  the  lender 
inquire  and  how  ascertain  the  fact?  Naturally  he  would  go  to  the 
freight  agent,  who  had  already  falsely  declared  in  writing  that  the 
property  had  been  received.  Is  he  any  more  authorized  to  make  the 
verbal  representation  than  the  written  one?  Must  the  lender  get 
permission  to  go  to  the  freighthouse  or  examine  the  books?  If  the 
property  is  grain,  it  may  not  be  easy  to  identify,  and  the  books,  if 
disclosed,  are  the  work  of  the  same  freight  agent.  It  seems  very 
clear  that  the  vital  fact  of  the  shipment  is  one  peculiarly  uithin  the 
knowledge  of  the  carrier  and  his  agent,  and  quite  certain  to  be  un- 
known to  the  transferee  of  the  bill  of  lading,  except  as  he  relies 
upon  the  representation  of  the  freight  agent. 

The  recitals  in  the  bill  that  the  contents  of  the  packages  were 
unknown  would  have  left  the  defendant  free  from  responsibility 
for  a  variance  in  the  actual  contents  from  those  described  in  the 
bill,  but  is  no  defense  where  nothing  is  shipped  and  the  bill  is 
wholly  false.  The  carrier  cannot  defend  one  wrong  by  presuming 
that  if  it  had  not  occurred  another  might  have  taken  its  place.  The 
presumption  is  the  other  way;  that  if  an  actual  shipment  had  been 
made,  the  property  really  delivered  would  have  corresponded  with 
the  description  in  the  bills. 

The  facts  of  the  case  bring  it  therefore  within  the  rule  of  estop- 
pel as  it  is  established  in  this  court  and  justify  the  decision  made. 

The  judgment  should  be  affirmed,  with  costs. 

All  concur. 

Judgment  affirmed. 

NOTB. — CJompare  with  following  case. 


( 130  United  States,  416.) 

FEIEDLANDER   vs.    TEXAS    AND    PACIFIC    RAILWAY 

COMPANY. 

(Supreme  Court  of  the  United  States,  April,  18S9.J 

Action  by  Friedlander  &  Co.  against  the  railway  company  to 
recover  for  the  non-delivery  of  certain  cotton  named  in  an  alleged 
bill  of  lading  issued  by  an  agent  of  defendant,  one  E.  D.  Easton, 


580 


Cases  on  Aqeij-ct.  [Book  IV 


and  of  which  plaintiffs  were  the  assignees.     The  opinion  states  the 
facts.    Judgment  for  defendant  in  the  court  below. 
A.  O.  Safford,  for  plaintiffs  in  error. 

Winslow  F.  Fierce  and  John  F.  Dillon,  for  defendant  in  error. 
Mr.  Chief  Justice  Fuller  delivered  tl  e  opinion  of  the  court. 
The  agreed  statement  of  facts  sets  forth  "  that,  in  point  of  fact, 
said  bill  of  lading  of  November  6,  1883,  was  executed  by  said  E.  D. 
Easton,  fraudulently  and  by  collusion  with  said  Lahnstein  and  with- 
out receiving  any  cotton  for  transportation,  such  as  is  represented  in 
said  bill  of  lading,  and  without  the  expectation  on  the  part  of  the 
said  Easton  of  receiving  any  such  cotton;''  and  it  is  further  said 
that  Easton  and  Lahnstein  had  fraudulently  combined  in  another 
case,  Avhereby  Easton   signed  and  delivered  to  Lahnstein  a  similar 
bill  of  lading  for  cotton  ''which  had  not  been  received,  and  which 
the  said  Easton  had  no  expectation  of  receiving;''  and  also,  ''that 
except  that  the  cotton  was  not  received  nor  expected  to  be  received 
by  said  agent  when  said  bill  of  lading  was  by  him  executed  as 
aforesaid,  the  transaction  was,  from  first  to  last,  customary."     In 
view  of  this  language,  the  words  "  for  transportation,  such  as  is 
represented  in  said  bill  of  lading,"  cannot  be  held  to  operate  as  a 
limitation.     The  inference  to  be  drawn  from  this  statement  is  that 
no  cotton  whatever  was  delivered  for  transportation  to  the  agent  at 
Sherman  station. 

The  question  arises  then,  whether  the  agent  of  a  railroad  com- 
pany at  one  of  its  stations  can  bind  the  company  by  the  execution 
of  a  bill  of  lading  for  goods  not  actually  placed  in  his  possession, 
and  its  delivery  to  a  person  fraudulently  pretending  in  collusion 
with  such  agent  that  he  had  shipped  such  goods,  in  favor  of  a 
party  without  notice,  with  whom,  in  furtherance  of  the  fraud,  the 
pretended  shipper  negotiates  a  draft,  with  the  false  bill  of  lading 
attached.  Bills  of  exchange  and  promissory  notes  are  representa- 
tives of  money,  circulating  in  the  commercial  world  as  such,  and  it 
is  essential,  to  enable  them  to  perform  their  peculiar  functions, 
that  he  who  purchases  them  should  not  be  bound  to  look  beyond 
the  instrument,  and  that  his  right  to  enforce  them  should  not  be 
defeated  by  anything  short  of  bad  faith  on  his  part.  But  bills  of 
lading  answer  a  different  purpose  and  perform  different  functions. 
They  are  regarded  as  so  much  cotton,  grain,  iron,  or  other  arti- 
cles of  merchandise,  in  that  they  are  symbols  of  ownership  of 
the  goods  they  cover.     And  as  no  sale  of  goods  lost  or  stolen, 


Chap.  V]  FeIEDLANDEE  vs.    PtAILAVAY   Co.  581 

though  to  a  lona  fide  purchaser  for  value,  can  divest  the  ownership 
of  the  person  who  lost  them  or  from  ^hom  they  were  stolen,  so  the 
sale  of  the  symbol  or  mere  representative  of  the  goods  can  have  no 
Buch  effect,  although  it  sometimes  happens  that  the  true  owner,  by 
negligence,  has  so  put  it  into  the  power  of  another  to  occupy  his 
position  ostensibly,  as  to  estop  him  from  asserting  his  right  as 
against  a  purchaser,  who  had  been  misled  to  his  hurt  by  reason 
of  such  negligence.  Shaw  vs.  Jiuilroad  Co.  101  U.  S.  557,  563; 
Pollard  vs.  Vi7iton,  105  U.  S.  7,  8;  Gurney  vs.  Behrend,  3  El.  & 
Bl.  622,  633,  634.  It  is  true  that  while  not  negotiable  as  commercial 
paper  is,  bills  of  lading  are  commonly  used  as  security  for  loans 
and  advances;  but  it  is  only  as  evidence  of  ownership,  special  or 
general,  of  the  property  mentioned  in  them,  and  of  the  right  to 
receive  such  property  at  the  place  of  delivery. 

Such  being  the  character  of  a  bill  of  lading,  can  a  recovery 
be  had  against  a  common  carrier  for  goods  never  actually  in  its 
posession  for  transportation,  because  one  of  its  agents  having 
authority  to  sign  bills  of  lading,  by  collusion  with  another  person, 
issues  the  document  in  the  absence  of  any  goods  at  all? 

It  has  been  frequently  held  by  this  court  that  the  master  of  a 
vessel  has  no  authority  to  sign  a  bill  of  lading  for  goods  not  actu- 
ally put  on  board  the  vessel,  and,  if  he  does  so,  his  act  does  not 
bind  the  owner  of  the  ship  even  in  favor  of  an  innocent  purchaser. 
The  Freeman  vs.  Buchingham,  18  How.  182, 191;  The  Lady  Franh- 
lin,  8  Wall.  325;  Pollard  vs.  Vinton,  105  TJ.  S.  7.  And  this  agrees 
with  the  rule  laid  down  by  the  English  courts.  LicMarrotv  vs. 
Mason,  2  T.  R.  77;  Grant  vs.  Norway,  10  C.  B.  665;  Cox  vs.  Bruce, 
18  Q.  B.  D.  147.  *'  The  receipt  of  the  goods,''  said  Mr.  Justice 
MiLLEE,  in  PoZZarc?  vs.  Vinton,  supra,  "lies  at  the  foundation  of 
the  contract  to  carry  and  deliver.  If  no  goods  are  actually  received, 
there  can  be  no  valid  contract  to  carry  or  to  deliver." 

"And  the  doctrine  is  applicable  to  transportation  contracts 
made  in  that  form  by  railway  companies  and  other  carriers  by  land, 
as  well  as  carriers  by  sea,''  as  was  said  by  Mr.  Justice  Matthews  in 
Iron  Mountain  Raihvay  vs.  Knight,  122  U.  S.  79,  87,  he  adding  also: 
"  If  Potter  (the  agent)  had  never  delivered  to  the  plaintiff  in  error 
any  cotton  at  all  to  make  good  the  525  bales  called  for  by  the  bills 
of  lading,  it  is  clear  that  the  plaintiff  in  error  would  not  be  liable 
for  the  deficiency.  This  is  well  established  by  the  cases  of  The 
Schooner  Freeman  vs.  Buckingham,  18  How.  182,  and  Pollard  is. 
Vinton,  105  U.  S.  7." 


682  Cases  on  Agency.  [Book  IV 

It  is  a  familiar  principle  of  law  that  where  one  of  two  innocent 
parties  must  suffer  by  the  fraud  of  another,  the  loss  should  fall 
npon  him  who  enabled  such  third  person  to  commit  the  fraud;  but 
nothing  that  the  railroad  company  did  or  omitted  to  do  can  be 
properly  said  to  hare  enabled  Lahnstein  to  impose  upon  Fried- 
lander  &  Co. 

The  company  not  only  did  not  authorize  Easton  to  sign  fictitious 
bills  of  lading,  but  it  did  not  assume  authority  itself  to  issue  such 
documents  except  upon  the  delivery  of  the  merchandise.  Easton 
was  not  the  company's  agent  in  the  transaction,  for  there  was 
nothing  upon  which  the  agency  could  act.  Eailroad  companies  are 
not  dealers  in  bills  of  exchange,  nor  in  bills  of  lading;  they  are 
carriers  only,  and  held  to  rigid  responsibility  as  such.  Easton, 
disregarding  the  object  for  which  he  was  employed,  and  not  intend- 
ing by  his  act  to  execute  it,  but  wholly  for  a  purpose  of  his  own 
and  of  Lahnstein,  became  particeps  criminis  with  the  latter  in  the 
commission  of  the  fraud  upon  Friedlander  &  Co.,  and  it  would  be 
going  too  far  to  hold  the  company,  under  such  circumstances, 
estopped  from  denying  that  it  had  clothed  this  agent  with  appar- 
ent authority  to  do  an  act  so  utterly  outside  the  scope  of  his 
employment  and  of  its  own  business. 

The  defendant  cannot  be  held  on  contract  as  a  common  carrier, 
in  the  absence  of  goods,  shipment  and  shipper;  nor  is  the  action 
maintainable  on  the  ground  of  tort.  **  The  general  rule,"  said 
TViLLES,  J.,  in  Barwtck  vs.  English  Joi7it  Stock  Bank,  L.  E.  2  Ex. 
259,  265,  "is  that  the  master  is  answerable  for  every  such  wrong  of 
the  servant  or  agent  as  is  committed  in  the  course  of  the  service 
and  for  the  master's  benefit,  though  no  express  command  or  privity 
of  the  master  be  proved.'*  See,  also,  Limpus  vs.  London  General 
Omnibus  Co.,  1  H.  &  C.  526.  The  fraud  was  in  respect  to  a  mat- 
ter within  the  scope  of  Easton's  employment  or  outside  of  it.  It 
was  not  within  it,  for  bills  of  lading  could  only  be  issued  for 
merchandise  delivered;  and  being  without  it,  the  company,  which 
derived  and  could  derive  no  benefit  from  the  unauthorized  and 
fraudulent  act,  cannot  be  made  responsible.  British  Mutual 
Banking  Co.  vs.  Charnwood  Forest  Railway  Co.,  18  Q.  B.  D.  714. 

The  law  can  punish  roguery,  but  cannot  always  protect  a  pur- 
chaser from  loss,  and  so  fraud  perpetrated  through  the  device  of  a 
false  bill  of  lading,  may  work  injury  to  an  innocent  party,  which 
cannot  be  redressed  by  a  change  of  victim. 

Under  the  Texas  statutes  the  trip  or  voyage  commences  from  the 


Chap.  V  ]  Feiedlandeb  vs.  Railway  Co.  C83 

time  of  the  signing  of  the  bill  of  lading  issued  upon  the  delivery  of 
the  goods,  and  thereunder  the  carrier  cannot  avoid  his  liability  as 
such,  even  though  the  goods  are  not  actually  on  their  passage  at 
the  time  of  a  loss,  but  these  provisions  do  not  affect  the  result  here. 
We  cannot  distinguish  the  case  in  hand  from  those  heretofore 
decided  by  this  court,  and  in  consonance  with  the  conclusions 
therein  announced  this  judgment  must  be  affirmed. 

Note. — Following  Bank  of  Batavia  vs.  Railroad  Co.  are  Brooke  vs.  Rail- 
road Co.,  108  Penn.  529;  Sioux  City  R.  R.  Co.  vs.  First  National  Bank,  10 
Neb.  556;  Savings  Bank  vs.  Railroad  Co.,  20  Kans.  519. 

Following  the  Friedlander  case,  see,  also,  National  Bank  of  Commerce 
vs.  Chicago,  B.  <S:  Q.  R.  Co.,  U  Minn.  224. 


684  Cases  on  Ageitot.  [Book  IT 


CHAPTER  VL 

DUTIES  AND  LIABILITIES  OF  THIRD  PERSONS  TO  THE  AGENT. 


(106  Massachusetts  334,  8  Am.  Rep.  332.) 

EHOADES  vs.   BLACKISTON. 

(Supreme  Judicial  Court  of  Massachusetts,  January,  1871.  J 

Action  by  plaintiff  npon  a  contract  made  by  him  in  hia  own 
name  while  he  was  acting  as  agent  for  Alonzo  V.  Lynde.  Plaintiff 
had  since  been  declared  a  bankrupt, 

T.  H.  Sweetser  and  C.  Abhott,  for  plaintiff. 
FF.  A.  Field,  for  defendant. 

Colt,  J.  It  is  a  well-established  rule  of  law  that  when  a  con- 
tract not  under  seal,  is  made  with  an  agent  in  his  own  name  for  an 
undisclosed  principal,  either  the  agent  or  the  principal  may  sue 
npon  it.  If  the  agent  sues,  it  is  no  ground  of  defense  that  the 
beneficial  interest  is  in  another,  or  that  the  plaintiff,  when  he 
recovers,  will  be  bound  to  account  to  another.  There  is  an  additional 
reason  for  giving  this  right  to  this  agent,  when  he  has  a  special 
interest  in  the  subject-matter,  or  a  lien  upon  it.  But  the  rule  pre- 
vails when  the  sole  interest  under  the  contract  is  in  the  principah 
The  agent's  right  is,  of  course,  subordinate  to  and  liable  to  the  con- 
trol of  the  principal,  to  the  extent  of  his  interest.  He  may  super- 
sede it  by  suing  in  his  own  name,  or  otherwise  suspend  or  extin- 
guish it,  subject  only  to  the  special  right  or  lien  which  the  agent 
may  have  acquired.  Colburn  vs.  Phillips,  13  Gray,  64;  Fairfield 
vs.  Adams,  HJ  Tick.  383;  Story  on  Agency,  §  403. 

In  this  case,  the  contract  relied  on  was  made  by  the  plaintiff  in 
his  own  name,  as  agent  for  an  undisclosed  principal,  who  does  not 
now  in  any  way  interpose.  But,  admitting  the  law  of  principal 
and  agent  as  that  stated,  the  defendants  further  contend  that  the 
plaintiff's  right  of  action  passed  to  his  assignees  in  bankruptcy, 
who  were  appointed  in  proceedings  commenced  after  the  alleged 
breach.      It  appears  that  the  plaintiff  made  the  contract  in  the 


Chap.  VI  ]  Rhoades  vs.  Blackiston.  685 

course  of  a  business  which  he  was  carrying  on  for  Alonzo  V.  Lynde, 
and  which  he  had  previonsly  transferred  to  Lynde  as  security  for 
a  debt,  with  the  agreement  that,  after  the  debt  was  paid,  the 
property  was  to  be  his  with  the  profits  of  the  business,  Lynde  fur- 
nishing all  the  capital  and  receiving  all  the  profits,  except  enough 
for  the  support  of  the  plaintiff  and  his  family,  until  the  debt  should 
be  paid.  And  it  is  claimed  that,  upon  these  facts,  the  plaintiff 
had  such  a  legal  and  equitable  interest  in  the  contract  that  it  must 
pass  by  the  bankruptcy  proceedings  to  the  assignees. 

Assignees  in  bankruptcy  do  not,  like  heirs  and  executors,  take 
the  whole  legal  title  in  the  bankrupt's  property.  They  take  such 
estate  only  as  the  bankrupt  had  a  beneficial  as  well  as  a  legal  interest 
in,  and  which  is  to  be  applied  for  the  payment  of  his  debts.  To  a 
plea  that  the  plaintiff  is  a  bankrupt,  and  that  all  his  estate  vested 
in  his  assignee,  it  is  a  good  replication  that  the  whole  beneficial 
interest  in  the  contract  or  demand  in  suit  was  vested  by  prior 
assignment  in  a  third  party,  for  whose  benefit  the  suit  is  prose- 
cuted. If,  however,  the  bankrupt  has  any  beneficial  interest  in  the 
avails  of  the  suit,  then  the  whole  legal  title  vests  in  his  assignee, 
and  the  action  must  be  in  his  name,  for  there  cannot  be  two  legal 
owners  of  one  contract  at  the  same  time.  Webster  v.  Scales,  4 
Doug.  7;  Winch  v.  Keeley,  1  T.  E.  619;  Carpnter  v.  Marnell,  3  B. 
and  P.  40.  In  most  of  the  English  cases  in  which  these  rules  have 
been  applied,  there  was  an  assignment  of  a  chose  of  action  by  the 
bankrupt  to  a  third  party,  made  before  the  bankruptcy,  and  they 
have  mainly  turned  on  the  question,  whether  the  transfer  was  abso- 
lute or  only  as  security  for  debt,  and,  if  as  security  only,  then 
further,  on  the  question  whether  the  security  was  of  greater  value 
than  the  debt  secured,  at  the  time  of  the  bankruptcy. 

The  case  of  D'Arnay  vs.  Chesneau,  13  Mees.  &  Welsh.,  796-809, 
relied  on  at  the  argument,  was  of  this  description,  and  Baron 
Parke  there  declared:  **That  if  the  debt  to  be  secured  was 
less  than  the  debt  assigned,  and  there  was  nothing  more  than  a 
simple  assignment  of  the  debt  as  a  security,  the  right  of  action 
would  vest  in  the  insolvent's  assignees.  In  such  a  case  they  would 
have  an  immediate  interest  in  the  sum  to  be  recovered,  from  which 
benefit  to  the  creditors  might  result,  and  they  would  not  have  been 
bound  to  refund  all  they  had  recovered  to  the  equitable  assignee  of 
the  deht  {iheiv  cestui  que  trust),  which  is  the  proper  criterion." 
Dangerfield  vs.  TJwmas,  9  Ad.  &  El.  292. 
The  court  are  of  opinion  that  the  rule  in  these  cases,  if  ever 


586  Cases  on  Agency.  [Book  IV 

applicable  to  a  case  where  an  agent  sues  upon  a  contract,  made  in 
the  course  of  his  agency,  where  the  suit  is  subject  to  the  control  of 
the  principal,  cannot  be  applied  to  defeat  the  plaintiff's  action  here. 
The  pledged  property  consisted  of  a  business  to  be  carried  on  with 
the  capital  of  the  party  to  whom  it  was  transferred. 

The  contracts  made  in  the  course  of  it  were  the  contracts  of  the 
principal.  The  agent  had  no  immediate  beneficial  interest  in  them. 
His  interest  was  only  in  the  future  profits,  and  that  contingent  on 
their  being  sufficient  to  pay  the  debt  he  owed.  The  contract  of 
Lynde  to  restore  the  property  to  the  plaintiff  was  executory,  and 
there  was  no  claim  that  the  contingency  had  happened  upon  which 
the  business  and  property  were  to  become  the  plaintiff's.  The  infer- 
ence from  the  facts  reported  is  that  it  did  not.  The  support  which 
he  was  to  have  for  himself  and  his  family  was  plainly  in  compen- 
sation for  his  agency  in  the  business.  And  there  is  nothing  to  show 
that  the  creditors  in  bankruptcy  have  any  valuable  interest  in  the 
contract  declared  on.  Farnham  vs.  Hurst,  8  Mees.  &  Welsh.  743; 
Ontario  Band  vs.  Mumford,  2  Barb.  Ch.  596;  3  Parsons  on  Con- 
tract, 479. 

Case  to  stand  for  trial. 

Note.— See  Bowe  va.  Band,  ante,  p.  257, 


Chap.  VII  ]  HuNTiiTGTOiif  vs.  Knox.  587 


CHAPTER    VII. 

DUTIES  AND  LIABILITIES  OF  THIRD  PERSONS  TO  PRINCIPAI^ 


(7  Gushing,  371.) 

HUNTINGTON  vs.  KNOX. 

(Supreme  Judicial  Court  of  Massachusetts,  September.  1851.) 

The  opinion  states  the  facta. 
M.  Wilcox,  for  plaintiff. 
/.  Sumner,  for  defendant. 

Shaw,  C.  J.  This  action  is  brought  to  recover  the  value  of  a 
quantity  of  hemlock  bark,  alleged  to  have  been  sold  by  the  plaiutiff 
to  the  defendant,  at  certain  prices  charged.  The  declaration  was 
for  goods  sold  and  delivered,  with  the  usual  money  counts.  The 
case  was  submitted  to  a  referee  by  a  common  rule  of  court,  who 
made  an  award  in  favor  of  the  plaintiff,  subject  to  the  opinion  of 
the  court  on  questions  reserved,  stating  the  facts  in  his  report,  on 
which  the  decision  of  those  questions  depends. 

The  facts  tended  to  show  that  the  bark  was  the  property  of  the 
plaintiff;  that  the  contract  for  the  sale  of  it  was  made  by  her 
agent,  George  H.  Huntington,  by  her  authority;  that  it  was  made 
in  writing  by  the  agent,  in  his  own  name,  not  stating  his  agency, 
or  naming  or  referring  to  the  plaintiff,  or  otherwise  intimating  in 
the  written  contract,  that  any  other  person  than  the  agent  was 
interested  in  the  bark.  Objection  was  made  before  the  referee,  to 
the  admission  of  parol  evidence,  and  to  the  right  of  the  plaintiff  to 
maintain  the  action  in  her  own  name.  The  referee  decided  both 
points  in  favor  of  the  plaintiff,  holding  that  the  action  could  be 
maintained  by  the  principal  and  owner  of  the  property,  subject  to 
any  set-off,  or  other  equitable  defense,  which  the  buyer  might  have, 
if  the  action  were  brought  by  the  agent.  The  court  are  of  opinion, 
that  this  decision  was  correct  upon  both  points.  Indeed  they 
resolve  themselves  substantially  into  one;  ior  prim  a  facie,  and  look- 
'^  g  only  at  the  paper  itself,  the  property  is  sold  by  the  agent,  on 


688  Casks  on  Agency.  [Book  IV 

credit;  and  in  the  absence  of  all  other  proof,  a  promise  of  payment 
to  the  seller  would  be  implied  by  law;  and  if  that  presumption  of 
fact  can  be  controverted,  so  as  to  raise  a  promise  to  the  principal 
by  implication,  it  must  be  by  evidence  aliunde,  proving  the  agency 
and  property  in  the  principal. 

It  is  now  well  settled  by  authorities,  that  when  the  property  of 
one  is  sold  by  another,  as  agent,  if  the  principal  give  notice  to  the 
purchaser,  before  payment,  to  pay  to  himself,  and  not  to  the  agent, 
the  purchaser  is  bound  to  pay  the  principal,  subject  to  any  equities 
of  the  purchaser  against  the  agent. 

"When  a  contract  is  made  by  deed  under  seal,  on  technical 
grounds,  no  one  but  a  party  to  the  deed  is  liable  to  be  sued  upon 
it,  and  therefore,  if  made  by  an  agent  or  attorney,  it  must  be  made 
in  the  name  of  the  principal,  in  order  that  he  may  be  a  party, 
because  otherwise  he  is  not  bound  by  it. 

But  a  different  rule,  and  a  far  more  liberal  doctrine,  prevails  in 
regard  to  a  written  contract  not  under  seal.  In  the  case  of  Higgins 
vs.  Senior,  8  Mees.  &  Wels.  834,  {ante,  p.  456)  it  is  laid  down  as  a 
general  proposition,  that  it  is  competent  to  show  that  one  or  both  of 
the  contracting  parties  were  agents  for  other  persons,  and  acted  as 
such  agents  in  making  the  contract  of  sale,  so  as  to  give  the  benefit 
of  the  contract  on  the  one  hand  to,  and  charge  with  liability  on 
the  other,  the  unnamed  principals;  and  this  whether  the  agree- 
ment be  or  be  not  required  to  be  in  writing,  by  the  statute  of 
frauds. 

But  the  court  mark  the  distinction  broadly  between  such  a  case 
and  a  case  where  an  agent,  who  has  contracted  in  his  own  name, 
for  the  benefit,  and  by  the  authority  of  a  principal,  seeks  to  dis- 
charge himself  from  liability,  on  the  ground  that  he  contracted  in 
the  capacity  of  an  agent.  The  doctrine  proceeds  on  the  ground  that 
the  principal  and  agent  may  each  be  bound;  the  agent,  because  by 
his  contract  and  promise  he  has  expressly  bound  himself;  and  the 
principal,  because  it  was  a  contract  made  by  his  authority  for  his 
account.  Paterson  vs.  Gahdastqui,  15  East,  62  {ante,  p.  545); 
Magee  vs.  Atkinson,  2  Mees.  &  V,  els.  440;  Trueman  vs.  Loder,  11 
Ad.  &  Ell.  589;  Taiiitor  vs.  Prendenjast,  3  Hill,  (N.  Y.)  72,  38 
Am.  Dec.  618;  Edwards  vs.  Golding,  20  Vt.  30.  It  is  analogous 
to  the  ordinary  case  of  a  dormant  partner.  He  is  not  named  or 
alluded  to  in  the  contract;  yet  as  the  contract  is  shown  in  fact  to 
be  made  for  his  benefit,  and  by  his  authority,  he  is  liable. 

So,  on  the  other  hand,  where  the  contract  is  made  for  the  benefit 


Chap.  VII]  Huntington  vs.  Knox.  589 

of  one  not  named,  thongh  in  writing,  the  latter  may  sue  on  the 

contract  jointly  with  others,  or  alone,  according  to  the  interest. 
Garrett  vs.  llandley,  4  B.  &  C.  664;  Sadler  vs.  Leigh,  4  Campb. 
195;  Coppin  vs.  Walker,  7  Taunt.  237;  Story  on  Agency,  §  410. 
The  rights  and  liabilities  of  a  principal,  upon  a  written  instrument 
executed  by  his  agent,  do  not  depend  upon  the  fact  of  the  agency 
appearing  on  the  instrument  itself,  but  upon  the  facts:  (1)  that 
the  act  is  done  in  the  exercise,  and  (2)  within  the  limits,  of  the 
powers  delegated;  and  these  are  necessarily  inqnirable  into  by  evi- 
dence. Mechanics'  Bank  vs.  Bank  of  Columbia,  5  Wheat.  (U.  S.) 
326. 

And  we  think  this  doctrine  is  not  controverted  by  the  authority 
of  any  of  the  cases  cited  in  the  defendant's  argument.  Hastings  vs. 
hovering,  2  Pick.  (Mass.)  214,  was  a  case  where  the  suit  was 
brought  against  an  agent,  on  a  contract  of  warranty  upon  a  sale 
made  in  his  own  name.  The  case  of  the  United  States  vs.  Parmele, 
Paine  252,  was  decided  on  the  ground  that  in  an  action  on  a 
written  executory  promise,  none  but  the  promisee  can  sue.  The 
court  admit  that,  on  a  sale  of  goods  made  by  a  factor,  the  princi- 
pal may  sue.  This  action  is  not  brought  on  any  written  promise 
made  by  the  defendant;  the  receipt  is  a  written  acknowledgment, 
given  by  the  plaintiff  to  the  defendant,  of  part  payment  for  the 
bark,  and  it  expresses  the  terms  upon  which  the  sale  had  been 
made.  The  defendant,  by  accepting  it,  admits  the  sale  and  its 
terms;  but  the  law  raises  the  promise  of  payment.  And  this  is  by 
implication,  prima  facie,  a  promise  to  the  agent;  yet  it  is  only 
prima  facie  and  may  be  controlled  by  parol  evidence  that  the  con- 
tract of  sale  was  for  the  sale  of  property  belongiug  to  the  plaintiff, 
and  sold  by  her  authority  to  the  defendant  by  the  agency  of  the 
person  with  whom  the  defendant  contracted. 

Judgment  for  plaintiff. 

NOTB. — See  Brigga  va.  Partridge,  ante,  p.  4SQi 


690  Cases  on  Agency.  [Book  IV 


(57  Pennsylvania  State,  202,  98  Am.  Deo.  215.) 

FARMERS*    AND    MECHANICS'    NATIONAL    BANK    vs. 

KING. 

(Supreme  Court  of  Pennsylvania,  February,  1868. J 

Scire  Facias  against  the  Farmers'  and  Mechanics'  National  Bank, 
garnishees  in  a  foreign  attachment  in  which  King  was  plaintiff 
and  John  H.  Curtis,  Jr.,  was  defendant.  The  defendant  was  the 
plaintiff's  agent  for  collecting  rents,  and  in  May,  1866,  owed  him 
between  eleven  hnndred  and  twelve  hundred  dollars.  Curtis  was 
also  agent  for  the  Philadelphia  Saving  Fund  Society,  for  the 
trustees  of  the  Fotteral  estate,  and  others.  He  deposited  his 
clients'  funds  in  the  bank  garnished.  Curtis  absconded  about 
the  30th  of  April,  1866.  On  the  31st  of  May  the  attachment  was 
served  on  the  garnishees,  and  there  was  at  that  time  a  balance 
in  the  bank  of  $1,140.36  to  the  credit  of  Curtis.  And  five 
minutes  after,  a  notice  was  served  on  the  cashier  of  the  garnishees, 
informing  them  that  the  moneys  were  in  fact  the  moneys  of 
the  Philadelphia  Saving  Fund  Society,  and  of  Russell  and  Eisen- 
bery,  trustees,  and  could  be  specifically  shown  to  be  such,  and  warn- 
ing them  not  to  pay  the  funds  to  Curtis. 

The  substance  of  the  testimony  offered  and  rejected  by  the  court 
is  stated  in  the  opinion.  The  court  refused  to  affirm  the  defend- 
ant's points,  and  instructed  the  jury  to  find  for  the  plaintiffs,  which 
they  did,  and  the  garnishees  took  a  writ  of  error,  and  assigned  for 
error  the  rejection  of  their  offer  of  evidence  and  the  instruction 
of  the  court. 

H.  Wharton  and  R.  L.  Ashhursf,  for  the  plaintiff  in  error. 

0.  D.  Budd  and  H.  E.  Wallace,  for  the  defendant  in  error. 

By  court.  Strong,  J.  There  was  evidence  at  the  trial  that  the 
money  which  had  been  deposited  in  the  bank  by  John  H.  Curtis 
was  not  his  own,  but  that  it  belonged  to  his  clients.  He  obtained 
it  as  their  agent,  and  he  held  it  as  such.  And  had  the  additional 
evidence  offered  been  received,  it  would  have  appeared  that  at 
least  $835.81  of  the  amount  belonged  to  the  Philadelphia  Saving 
Fund  Society  and  to  the  trustees  of  the  Fotteral  estate.  It  had 
been  collected  for  them,  and  deposited  to  the  credit  of  their  agent. 
Their  right  to  it  was  not  lost  because  it  was  thus  deposited.     It  is 


Chap.  VII  ]  Nat*l  Bank  vs.  Kino.  691 

nndeniable  that  equity  will  follow  a  fnnd  through  any  number  of 
transmutations,  and  preserve  it  for  the  owner  so  long  as  it  can  be 
identified.  And  it  does  not  matter  in  whose  name  the  legal  right 
Btands.  If  money  ha-^  been  converted  by  a  trustee  or  agent  into  a 
chose  in  action,  the  legal  right  to  it  may  have  been  changed,  but 
equity  regards  the  beneficial  ownership. 

It  is  conceded,  for  the  cases  abundantly  show  it,  that  when  the 
bank  received  the  deposits,  it  thereby  became  a  debtor  to  the 
depositor.  The  debt  might  have  been  paid  in  answer  to  his  checks, 
and  thus  the  liability  have  been  extinguislied  in  the  absence  of 
interference  by  his  principals,  to  whom  the  money  belonged.  But 
surely  it  cannot  be  maintained  that  when  the  principals  asserted 
their  right  to  the  money  before  its  re-payment,  and  gave  notice  to 
the  bank  of  their  ownership,  and  of  their  unwillingness  that  the 
money  should  be  paid  to  their  agent,  his  right  to  reclaim  it  had  not 
ceased.  A  bank  can  be  in  no  better  situation  than  any  other 
debtor.  If  an  agent  receive  money  of  his  principal,  and  lends  it, 
taking  a  promissory  note  to  himself,  the  note  belongs  to  his  princi- 
pal, and  the  borrower  may  not  pay  the  agent  after  he  has  been 
informed  that  there  is  a  superior  right,  and  has  received  notice  not 
to  pay  the  agent.  This  is  a  rule  of  general  application.  Story  in 
his  treatise  on  equity,  in  section  1259,  remarks:  "  It  matters  not 
in  the  slightest  degree  into  whatever  other  form  different  from  the 
original  the  change  may  have  been,  whether  it  be  that  or  promis- 
sory notes  or  of  goods,  or  of  stock,  for  the  product  or  the  substi- 
tute for  the  original  thing  still  follows  the  nature  of  the  thing 
itself  so  long  as  it  can  be  ascertained  to  be  such.'*  Even  at  law  an 
unknown  principal  often  may  avail  himself  of  a  contract  made  with  his 
agent.  In  the  case  of  a  simple  contract  he  may  show  that  the  apparent 
party  was  his  agent,  and  treat  the  contract  as  made  with  himself, 
not,  however,  injuriously  affecting  the  rights  of  the  other  party. 
In  many  of  these  cases  he  is  allowed  to  sue  directly  upon  the  con- 
tract. But  wherever  he  can  show  that  his  money  has  been  placed 
in  the  hands  of  another  by  his  agent,  it  is  no  objection  to  his  claim 
that  that  other  has  promised  to  pay  it  to  the  agent.  In  Frazier  vs. 
Erie  City  Bank,  8  Watts  &  S.  18,  it  was  ruled  that  if  an  agent 
procure  the  note  of  his  principal  to  be  discounted,  and  deposit  the 
proceeds  in  bank  to  his  own  credit,  the  principal  may  maintain  an 
action  therefor  against  the  bank  in  his  own  name,  and  this  though 
the  bank  had  no  notice  when  the  deposit  was  made  that  the  money 
deposited  did  not  belong  to  the  agent.     There  are  several  English 


592  Cases  on  Agency.  [Book  IV 

cases  at  law,  some  cited  in  the  argnment,  and  others  referred  to  by 
Read,  J.,  in  Banh  of  Korthern  Liberties  vs.  Jones,  42  Pa.  St.  536, 
that  may  be  noticed;  Sims  vs.  Bond,  5  Barn.  &  Adol.  389,  is  one. 
It  was  an  action  brought  to  recover  the  balance  of  an  account  with 
a  banker,  in  the  name  of  another,  upon  the  allegation  that  it  was 
the  money  of  the  plaintiffs,  and  it  was  held  that  plaintiffs  who  seek 
to  recover  the  balance  of  such  an  account  must  show  that  the 
loans  were  made  by  them. 

So  in  Tassel  vs.  Cooper,  9  Com.  B.  509  where  the  bailifE  of  Lord 
Dudley  had  paid  a  check  belonging  to  his  employer  into  his  own 
account  with  certain  bankers,  who  received  the  cash  for  it,  and 
gave  credit  for  it  in  the  bailiff's  account,  it  was  held  that  the  bailiff 
could  recover  it,  even  after  Lord  Dudley  had  given  notice  to  the 
bankers  of  the  fraud,  and  indemnified  them.  These  cases  are 
hardly  reconcilable  with  our  own  case  of  Frazier  vs.  Erie  City 
Batik,  supra.  It  is  perhaps  fair  to  surmise  that  they  would  have 
been  differently  decided  did  the  English  system  of  pleading  allow 
parties  to  stand  in  a  court  of  law  either  as  plaintiffs  or  defendants 
on  a  mere  equitable  right.  In  Pennell  vs.  Deffell,  4  De  Gr.  M.  &  G. 
572,  we  have  the  rule  as  understood  in  equity.  It  was  a  con- 
test between  an  official  assignee  in  bankruptcy  and  insolvency,  and 
the  executors  of  a  prior  deceased  assignee,  who  had  kept  an  account 
with  bankers,  into  which  he  had  paid  his  own  money  as  well  as  the 
money  of  the  trusts.  The  accounts  were  not  distinguished  as 
official  accounts,  but  were  opened  in  the  depositor's  own  name. 
There  was  nothing  to  show  that  he  was  not  alone  interested  in  the 
Bums  due  from  timo  to  time  from  the  bankers. 

Lords  Justices  Knight,  Bkuce  and  Turneb  held  that  the 
assignee  was  entitled  as  against  the  executors  of  the  depositor. 
The  former  said  that  *'  when  a  trustee  pays  money  into  a  bank  to 
his  credit,  the  account  being  a  simple  account  with  himself,  not 
marked  or  distinguished  in  any  other  manner,  the  debt  thus  con- 
stituted from  the  bank  to  him  is  one  which,  as  long  as  it  remains 
due,  belongs  specifically  to  the  trust  as  much  and  as  effectually  as 
the  money  so  paid  would  have  done  had  it  specifically  been  placed 
by  the  trustee  in  a  particular  repository,  and  so  remained."  There 
is  much  more  in  the  case.  It  is  particularly  to  be  noticed  that  the 
moneys  of  several  distinct  trusts  were  carried  into  the  account;  that 
the  trustee's  own  money  had  been  mixed  with  them,  and  that  a 
rule  was  laid  down  for  determining  what  belonged  to  the  trusts 
and  what  to  the  depositor.     It  is  true,  Pennell  vs.   Deffell,   supra, 


Chap.  VII]  Nat'l  Bank  vs.  King.  593 

does  not  determine  the  right  to  sue  at  law;  but  it  determines  the 
owner.'^hip  of  the  fund  under  the  circumstances  dcsoiibed,  and  ii 
that  is  established  with  us,  there  can  be  no  di(Hculty  as  to  the 
right  of  the  owner  to  sue. 

This  was  decided  in  Stair  vs.  York  JVr  iional  Bank,  55  Pa.  St. 
364,  93  Am.  Dec.  759,  a  case  decided  at  last  May  term,  in  which 
the  opinion  was  delivered  by  our  brother  Agnew.  There  W.  W. 
Wolf  had  deposited  in  the  bank  a  sum  of  money  belonging  to 
Sherer's  estate.  It  was  credited  in  a  pass-book  in  which  other 
credits  were  given  to  him  as  sheriff,  yet  Sherer's  administrator  de 
lonis  non  was  allowed  to  recover  it  from  the  bank.  A  deposit  in 
bank,  then,  does  not  change  the  property  in  trust  funds  deposited 
by  a  trustee.  The  depositor  may  become  a  creditor  of  the  bank, 
but  he  holds  the  contract  in  trust  as  he  held  the  money  before.  It 
is  not  applicable  to  the  payment  of  his  debts  to  a  general  creditor. 
And  a  creditor  who  attaches  the  debt  due  from  the  bank  to  him 
can  be  in  no  better  condition  than  the  depositors.  At  most,  he 
becomes  a  statutory  assignee  of  a  naked  legal  right,  with  the  bene- 
ficial ownership  in  another. 

It  is  strenuously  insisted,  however,  that  Jachson  vs.  Banh  of  tJis 
United  States,  10  Pa.  St.  61,  asserts  a  different  doctrine.  But  that 
case  differs  materially  from  the  present,  and  it  is  not  in  conflict 
with  anything  we  have  hitherto  said.  There  after  a  foreign  attach- 
ment served,  and  even  after  a  scire  facias  against  the  garnishees,  the 
defendant  had  made  deposits  in  the  bank  in  his  own  name.  He 
subsequently  drew  out  all  his  deposits,  the  bank  paying  his  checks 
without  any  regard  to  the  attachment. 

It  was  held  that  the  bank  could  not  afterwards  defend  against 
the  scire  facias  by  attempting  to  show  that  the  money  deposited 
in  fact  was  the  money  of  some  undisclosed  principal  of  the  depos- 
itor. When  the  money  was  paid  the  bank  had  no  knowledge  that  it 
belonged  to  any  other.  There  was  therefore  no  other  cause  for  with- 
holding it  than  the  attachment  itself.  The  case  seems  to  have 
been  put  upon  the  ground  that  the  bank  could  not  have  resisted 
the  claim  of  the  depositor.  Said  Judge  Coulter:  *'  They  (the 
bank)  received  it  (the  money)  and  the  bills  as  his,  entered  them 
on  their  books  as  his,  and  were  bound,  in  the  absence  of  any  attach- 
ment, to  have  paid  the  funds  to  him.  *  *  ♦  ']^\^q 
attaching  creditor  stands  in  the  place  of  Warwick  (depositor)." 
All  this  is  true.  But  how  would  it  have  been  if  the  real  owners  of 
38 


594  Cases  on  Agency.  [  Book  FV 

tlie  funds,  as  in  this  case,  had  given  notice  to  the  hank  of  their 
claim  to  the  money  and  demanded  it?  Could  they  not  then  have 
resisted  the  claim  of  the  depositor?  Frazier  vs.  Erie  City  Bank, 
and  Stair  vs.  Yurh  National  Bank,  siqna,  show  they  could. 

If  at  the  time  the  deposits  were  made  they  had  known  the  money 
was  clothed  with  a  trust,  they  could  not  have  paid  it  to  Warwick 
in  disregard  of  the  trust.  Banh  of  Northern  Liberties  vs.  Jones, 
42  Pa.  St.  536,  decides  that.  Until  warned  to  the  contrary,  they 
had  a  right  to  assume  the  depositor  was  authorized  to  draw  the 
money,  but  when  warned,  it  was  not  so.  The  judge  said:  '*  It  is 
worthy  of  remark  that  the  persons  alleged  by  the  garnishees  to  he  the 
cestuis  gne  trust  never  gave  notice  to  the  attaching  creditor  of  any 
claim,  never  appeared  in  court  to  move  that  the  attachment  should 
he  quashed,  nor  took  any  step  asserting  ownership  or  indicative  of 
it."  Another  reason  given  for  holding  the  garnishees  liable  to  the 
attaching  creditor  was  that  they,  after  having  paid  the  money  to 
the  depositor,  and  by  their  own  books,  papers,  and  records  given 
the  evidence  that  it  was  his,  should  not  be  permitted  to  allege  the 
contrary  for  the  purpose  of  protecting  themselves  in  a  wrongful  act. 
"  The  duty  of  the  garnishee,"  said  the  judge,  "was,  after  having 
received  the  money  and  bills  as  the  money  and  bills  of  Warwick, 
from  himself,  to  have  retained  them  until  liberated  by  due  course 
of  law."     All  this  is  totally  inapplicable  to  the  present  case. 

The  language  of  the  judge  must  be  considered  with  reference  to 
the  facts;  and  if  so,  Jackson  vs.  Bank  of  the  United  States,  10  Pa. 
St.  61,  does  not  rule  the  present  case.  Here  the  money  remains  in 
bank  undrawn,  and  while  thus  remaining,  the  true  owners  assert 
their  claim  to  it.  And  had  the  rejected  evidence  been  received, 
there  would  have  been  no  diflBculty  in  identifying  that  portion  of 
it  which  belonged  to  the  saving  fund  society  and  to  the  trustees  of 
the  Fotteral  estate.  Eight  hundred  and  thirty-five  dollars  and 
eighty-one  cents  of  the  money  in  the  bank  was  theirs.  It  was  col- 
lected by  Curtis  and  deposited  since  any  check  was  drawn,  and 
unless  their  right  to  it  was  lost  by  the  deposit,  it  is  still  theirs.  That 
the  fact  of  depositing  it  did  not  destroy  their  ownership,  is  settled 
by  the  cases  already  cited,  among  which  are  Bank  of  Northern 
Liberties  vs.  Jones  and  Stair  vs.  York  National  Bank,  sujira. 
But  it  is  insisted  that  there  was  no  ear-mark  to  the  money.  What  of 
that,  if  the  money  can  be  followed,  or  if  it  can  be  traced  into  a 
substitute?    This  is  often  done  through  the  aid  of  an  ear-mark. 


Chap.  VII]  Nat*l  Bank  vs.  King.  695 

But  that  is  only  an  index,  enabling  a  beneficial  owner  to  follow  hia 
property.  It  is  no  evidence  of  ownership.  An  ear-mark  is  not 
indispensable  to  enable  a  real  owner  to  assert  his  right  to  property, 
or  to  its  product  or  substitute. 

Evidence  of  substantial  identity  may  be  attached  to  the  thing 
itself,  or  it  may  be  extraneous.  It  is  freely  admitted  that  if  a 
trustee  or  agent  receive  money  of  a  cestui  que  trust  or  principal, 
and  mingle  it  with  his  own  so  that  it  cannot  be  followed,  the 
cestui  que  trust  or  principal  cannot  recover  it  specifically.  This 
is  not  because  the  ownership  is  changed,  but  because  a  court  can- 
not lay  hold  of  the  property  as  that  of  the  owner.  But  in  regard 
to  money,  substantial  identity  is  not  oneness  of  pieces  of  coin  or  of 
bank  bills.  If  an  agent  to  collect  money  puts  the  money  collected 
into  a  chest  where  he  has  money  of  his  own,  he  does  not  thereby 
make  it  all  his  own  and  convert  himself  into  a  mere  debtor  to  his 
principal.  The  principal  may  by  the  law  claim  out  of  the  chest 
the  sums  which  belonged  to  him  before  the  admixture.  I  ennell 
vs.  Deffell,  supra. 

Applying  now  what  we  have  said  to  the  present  case,  the  evidence 
offered  and  rejected  should  have  been  received,  and  the  jury  should 
have  been  instructed  that,  if  they  believed  it,  $835,81  of  the 
fund  in  the  bank  were  not  the  property  of  John  H.  Curtis,  and 
were  not  liable  to  attachment  as  such. 

It  is  apparent,  in  this  view  of  the  case,  that  it  is  quite  immaterial 
whether  the  attachment  was  served  before  the  notice  of  the  saving 
fund  society  and  of  the  trustees  of  the  Fotteral  estate.  The 
attaching  creditor  stands  in  the  position  of  the  depositor,  and  can 
recover  only  what  the  depositor  could. 

The  judgment  is  reversed,  and  a  venire  de  novo  ordered. 

Note. — See,  also,  National  Bank  vs.  Insurance  Co.,  104  U.  S.  54;  Fifth 
National  Bank  vs.  Hyde  Park,  101  111.  595,  40  Am.  Rep.  218;  Riehl  va. 
Evansville  Foundry  Association,  104  Ind.  70;  Wolffe  vs.  State,  79  Ala.  201, 
68  Am.  Bep.  590. 


596  Cases  on  Agency.  [Book  IV 

(100  New  Yoke,  31,  53  Am.  Rep.  150.) 

BAKER  vs.  NEW  YORK  NATIONAL  BANK 

CNew  York   Court  of  Appeals,  October,  1885.) 

Action  upon  a  check.  Wilson  and  Bro.,  commission  merchants, 
were  insolvent,  and  opened  an  account  in  defendant  bank  in  their 
name,  with  the  word  "agents"  added,  in  which  account  they 
deposited  the  proceeds  of  goods  sold  by  them  for  their  principals 
on  commissiou.  The  purpose  of  this  was  to  protect  their  princi- 
pals, among  whom  were  the  plaintiffs,  and  of  this  purpose  the  bank 
had  knowledge.  The  check  in  question  was  given  by  Wilson  & 
Bro.  in  settlement  of  their  account  with  plaintiffs.  Defendant, 
as  excuse  for  not  paying  the  check,  alleged  that  Wilson  &  Bro.  had 
authorized  defendant  to  charge  to  this  account  a  claim  due  from 
Wilson  &  Bro.  as  individuals,  and  that  this  claim  had  exhausted 
the  account  so  that  there  were  no  funds  with  which  to  pay  the 
check.     Plaintiffs  had  judgment  below  and  defendant  appealed. 

TJws.  Allison,  for  appellant. 

E.  More,  for  respondents. 

Andrews,  J.  The  relation  between  a  commission  agent  for  the 
sale  of  goods  and  his  principal  is  fiduciary.  The  title  to  the  goods 
until  sold  remains  in  the  principal,  and  when  sold,  the  proceeds, 
whether  in  the  form  of  money  or  notes,  or  other  securities,  belong 
to  him,  subject  to  the  lien  of  the  commission  agent  for  advances  and 
other  charges.  The  agent  holds  the  goods  and  the  proceeds  upon 
an  implied  trust  to  dispose  of  the  goods  according  to  the  directions 
of  the  principal,  and  to  account  for,  and  pay  over  to  him  the 
proceeds  from  sales.  The  relation  between  the  parties  in  respect 
to  the  proceeds  of  sale  is  not  that  of  debtor  and  creditor  simply. 
The  money  and  securities  are  specifically  the  property  of  the 
principal,  and  he  may  follow  and  reclaim  them,  so  long  as  their 
identity  is  not  lost,  subject  to  the  rights  of  a  iona  fide  purchaser 
for  value. 

In  case  of  the  bankruptcy  of  the  agent,  neither  the  goods  nor 
their  proceeds  would  pass  to  assignees  in  bankruptcy  for  general 
administration,  but  would  be  subject  to  the  paramount  claim  of 
the  principal.  Chesterfield  Mamifadurmg  Co.  vs.  Delion,  6  Pick. 
7.,  8.  0.  16  Am.  Dec.  3G7;  Merrill  vs.  Bank  of  Norfolk,  19  Pick. 


Chap.  VII  ]  Baker  vs.  Nat'l  Bank.  597 

32;  Thompson  vs.  Perkins,  3  Mason,  233;  Knatchhull  vs.  Ilallet, 
13  Ch.  Div.  696;  Duguid  vs.  Edwards,  50  Barb.  290;  Story  on 
Agency,  §  229.  The  relation  between  a  principal  and  a  consignee 
for  sale  is,  however,  subject  to  modification  by  express  agreement, 
or  by  agreement  implied  from  the  course  of  business  or  dealing 
between  them.  The  parties  may  so  deal  that  the  consignee 
becomes  a  mere  debtor  to  the  consignor  for  the  proceeds  of  sale, 
having  the  right  to  appropriate  the  specific  proceeds  to  his  own 
use. 

In  the  present  case  the  bank  account  against  which  the  check 
was  drawn  represented  trust  moneys  belonging  to  the  principals 
for  whom  Wilson  &  Bro.  were  agents.  The  deposits  to  the  credit 
of  this  account  were  made  in  the  name  of  the  firm,  with  the  word 
**  agents "  added.  They  were  the  proceeds  of  commission  sales. 
Wilson  &  Bro.  became  insolvent  in  October,  1878,  and  they  opened 
the  account  in  this  form  for  the  purpose  of  protecting  their  principals, 
which  purpose  was  known  to  the  bank  at  the  time.  The  check  in 
question  was  drawn  on  this  account  in  settlement  for  a  balance  due 
to  plaintiffs,  upon  cash  sales  made  by  the  drawers  as  their  agents. 
It  is  clear  upon  the  facts  that  the  fund  represented  by  the  deposit 
account  was  a  trust  fund,  and  that  the  bank  had  no  right  to  charge 
against  it  the  individual  debt  of  Wilson  &  Bro,  The  bank,  having 
notice  of  the  character  of  the  fund,  could  not  appropriate  it  to  the 
debt  of  Wilson  &  Bro.,  even  with  their  consent  to  the  prejudice  of 
the  cestuis  que  trust. 

The  supposed  difficulty  in  maintaining  the  action  arising  out  of 
the  fact  that  the  money  deposited  was  not  the  specific  proceeds  of 
the  plaintiffs'  goods  is  answered  by  the  case  of  Van  Alen  vs.  Amer- 
ican Na'.  Bank,  52  N.  Y.  1.  Conceding  that  Wilson  &  Bro.  used 
the  specific  proceeds  for  their  own  purposes,  and  their  identity  was 
lost,  yet  when  they  made  up  the  amounts  so  used,  and  deposited 
them  in  the  trust  account,  the  amounts  so  deposited  were 
impressed  with  the  trust  in  favor  of  the  principals,  and  become 
substituted  for  the  original  proceeds  and  subject  to  the  same 
equities.  The  objection  that  the  deposit  account  represented  not 
only  the  proceeds  of  the  plaintiffs'  goods,  but  also  the  proceeds  of 
the  goods  of  other  persons,  and  that  the  other  parties  interested 
are  not  before  the  court,  and  must  be  brought  in  in  order  to  have 
a  complete  determination  of  the  controversy,  is  not  well  taken. 

The  objection  for  defect  of  parties  was  not  taken  in  the  answer, 
and  moreover,  it  does  not  appear  that  there  are  any  unsettled 


598  Cases  on  Agency.  [Book  IV 

accounts  of  Wilson  &  Bro.,  with  any  other  person  or  persons  for 
whom  they  were  agents.  The  check  operated  as  a  setting  apart  of 
so  much  of  the  deposit  account  to  satisfy  the  plaintiff's  claim.  It 
does  not  appear  that  the  plaintiffs  are  not  equitably  entitled  to  this 
amount  out  of  the  fund,  or  that  there  is  any  conflict  of  interest 
between  them  and  any  other  person  or  persons  for  whom  Wilson  & 
Bro.  acted  as  consignees.  The  presumption,  in  the  absence  of  any 
contrary  indication,  is  that  the  fund  was  adequate  to  protect  all 
interests,  and  that  Wilson  &  Bro.  appropriated  to  the  plaintiffs  only 
their  just  share. 

We  are  of  the  opinion  that  the  judgment  was  properly  directed, 
and  it  should  therefore  be  affirmed. 

All  concur.  Judgment  affirmed. 


(150  Massachusetts,  461.) 

CITY  OF  BOSTON  vs.  SIMMONS  AND  WILSON. 

(Supreme  Judicial  Court  of  Massachusetts,  January,  1890. J 

Action  of  tort.  The  opinion  states  the  facts.  The  defendant 
Wilson  demurred  to  the  declaration. 

S.  J.  Thomas,  A.  Russ  and  D.  A.  Dorr,  for  Wilson. 
A.  J.  Bailey,  for  the  plaintiff. 

Deveks,  J.  (After  disposing  of  another  question. )  The  decla- 
ration to  which  the  defendants  have  demurred,  and  the  allegations 
which  we  must  take  for  the  purpose  of  this  hearing,  to  be  true, 
omitting  the  expletives  by  which  they  have  been  characterized,  are 
that  Simmons  was  a  member  of  the  water  board  of  the  city  of  Bos- 
ton, which  board  was  empowered  and  authorized  to  purchase  for 
the  city,  land  for  the  purpose  of  constructing  a  reservoir;  that  he 
knew  and  had  a  share  in  determining  the  action  of  the  board  in 
making  such  purchase,  and  further,  that  Wilson  had  knowledge  of 
the  position,  knowledge,  and  authority  of  Simmons;  that  together, 
taking  advantage  of  this,  and  intending  to  defraud  the  plaintiff,  it 
was  agreed  corruptly  between  them,  that  Simmons  should  inform 
Wilson  of  the  doings  of  the  board  in  the  selection  of  the  land,  and 
of  the  piece  which  they  should  consider  suitable  for  a  site  for  said 
reservoir;  and  that  they  further  agreed  that  Wilson  should  become 


Chap.  VII  ]     City  of  Boston  vs.  Simmons  and  Wilson.        599 

the  purchaser  of  this  lot,  that  it  should  afterwards  be  purchased 
by  the  board  at  an  advanced  price,  and  that  the  profits  should 
be  divided  between  themselves. 

The  declaration  further  avers  that,  in  pursuance  of  this  agree- 
ment, Simmons  did  impart  to  Wilson  that  the  board  had  consid- 
ered a  particular  lot  suitable  for  a  reservoir;  that  it  was  then 
bought  by  Wilson;  that  thereafter  the  board,  influenced  by  Sim- 
mons, did  purchase  this  land  for  the  city  at  an  advanced  price  from 
Wilson,  and  that  Wilson  and  Simmons  divided  the  profits  of  the 
transaction. 

If  this  whole  transaction,  as  described  by  the  declaration,  had 
been  conducted  by  Simmons  alone,  without  aid  from  or  interven- 
tion of  Wilson— if  knowing  the  determination  of  the  board  that 
the  lot  in  question  was  suitable  for  the  purpose,  he  had  himself 
purchased  it,  and  then,  availing  himself  of  his  influence  with  the 
board,  had  induced  it  to  purchase  the  lot  from  him  at  an  advanced 
price — he  certainly  would  have  been  liable  to  the  city  for  the  injury 
occasioned  by  this  abuse  of  his  trust.  He  was  one  of  the  officials 
of  the  city,  acting  on  its  behalf,  bound  to  act  in  good  faith,  to 
make  a  proper  selection  of  the  lot  for  a  reservoir,  and  to  purchase 
it  at  the  most  reasonable  price.  Walker  vs.  Osgood,  98  Mass.  348, 
93  Am.  Dec.  168;  Cutter  vs.  Demmon,  111  Mass.  474;  Rice  vs. 
Wood,  113  Mass.  133,  135,  18  Am.  Rep.  459,  {ante  p.  12). 

To  purchase  himself  the  lot  of  land  which  he  knew  the  board  of 
which  he  was  a  member  had  considered  suitable,  with  a  view  to 
compel  it  to  pay  an  advanced  price  therefor,  and  thereafter  to  avail 
himself  of  his  influence  with  the  board  to  have  this  advanced  price 
actually  paid,  and  thus  to  obtain  a  profit,  would  be  a  violation  of 
the  duty  he  owed  to  the  city  and  a  wrong  done  to  the  city  for 
which  it  should  be  entitled  to  a  remedy.  The  fact  that  he  acted 
according  to  the  averments  of  the  declaration  in  connection  with 
another  party,  presumably  that  his  relation  to  the  purchase  miglit 
not  appear  and  his  influence  be  thus  destroyed,  does  not  disminish 
his  own  responsibility;  while  the  other,  who  participated  in  the 
scheme,  and  who  has  knowingly  aided  and  abetted  in  the  transac- 
tion, and  shared  its  profits  in  pursuance  of  their  agreement  so  to 
do,  becomes  a  wrongdoer  with  him.  Adams  vs.  Pai'ije,  7  Pick.  543, 
650;  Emery  vs.  Hai>good,  7  Gray,  55,  58,  QQ  Am.  Dec.  459;  United 
States  vs.  State  Bank,  90  U.  S.  30,  35. 

It  is  said  on  behalf  of  Wilson  that  nothing  had  been  done 
towards  the  purchase  of  the  lot  when  Simmons  imparted  to  him  the 


600  Cases  on  Agen^cy.  [Book  IV 

information;  that  the  allegation  that  the  board  had  considered  the 
lot  in  question  as  suitable  for  the  reservoir,  is  not  an  allegation  that 
anything  was  actnally  done  towards  its  purchase;  that  Wilson  might 
elsewhere  have  obtained  information  that  the  members  of  the  board 
were  talking  of  buying  the  lot;  that  this  conversation  gave  them  no 
right  in  it;  that  the  owner  could  still  properly  sell  to  whom  he 
pleased;  and  that  Wilson  had  the  same  right  to  purchase  that  any- 
oce  has  who  buys  an  estate  in  anticipation  of  future  uses  which 
will  make  it  more  valuable. 

While  it  is  true  that  one  may  avail  himself  of  his  own  judgment, 
or  of  information  properly  obtained,  to  purchase  land  in  anticipa- 
tions of  its  rise  in  value,  it  is  quite  a  different  question  whether 
one  who  knows  another  to  be  acting  for  a  principal  who  desires  to 
purchase  a  piece  of  land  may,  on  receiving  information  of  this  from 
the  agent,  purchase  the  laud  himself  upon  an  arrangement  with 
the  agent  that  he  will  use  his  efforts  to  induce  the  principal  to 
complete  the  purchase  at  an  advanced  price,  and  then  divide  the 
profits  with  him. 

The  abuse  of  trust  of  which  the  agent  is  guilty  with  his  knowl- 
edge and  co-operation  is  a  wrong  for  which  both  are  liable,  as  the 
injury  to  the  principal  is  the  result  of  their  combined  action. 
Where  an  agent  purchased  property  for  his  principal,  and  falsely 
represented  that  he  had  paid  for  it  a  larger  sum  than  he  had  actu- 
ally paid,  it  was  held  that  he  would  be  liable  for  such  overplus. 
There  is  no  reason  why  one  who  has  intentionally  co-operated  with 
him,  and  has  enabled  him  to  commit  the  fraud,  should  not  be 
equally  liable.  McMillan  vs.  Arthur,  98  N.  Y.  167.  The  owner 
or  cestui  que  trust  may  pursue  the  trust  funds  into  whosoever 
hands  they  may  have  passed,  so  long  as  they  can  be  traced  and 
knowledge  of  their  character  can  be  brought  home  to  the  possessor. 
Not  less  should  the  principal,  who  had  been  wronged  by  the  mis- 
conduct of  his  own  agent,  be  allowed  to  pursue,  not  merely  him,  but 
those  who  have  actively  co-operated  in  his  breach  of  duty,  and 
accepted  their  share  of  the  profits  of  the  transaction. 

It  is  not  important  that  the  board,  when,  as  it  is  alleged, 
Simmons  informed  Wilson  that  it  had  determined  that  the  lot  was 
a  suitable  one  for  the  reservoir,  does  not  appear  to  have  then  finally 
decided  to  take  it,  or  that  Simmons  alone  could  not  have  compelled 
them  to  take  it.  He  had  no  right  to  confide  to  another  the  result 
of  the  deliberations  of  tbe  board  so  far  as  they  had  progressed.  If 
he  did  so,  and  if,  with  full  knowledge  on  the  part  of  both,  the  two 


Chap.  VII  ]     City  of  Boston  vs.  Simmoks  and  Wilson.       601 

entered  into  an  agreement  that  Wilson  should  then  purchase  and 
hold  the  land  for  an  advanced  price,  to  be  divided  between  them  if 
the  operation  should  prove  successful,  while  Simmons  should  use 
his  iniiuence  with  the  board,  of  which  he  was  a  member,  to  have  it 
purchased  at  the  advanced  price,  an  agreement  was  made  to  commit 
a  fraud  upon  the  city.  If  the  allegations  made  shall  be  proved, 
and  if  the  fraud  shall  have  been  consummated  by  means  of  the 
information  imparted  by  Simmons,  the  purchase  made  by  Wilson, 
and  the  influence  of  Simmons  with  the  board  which  were  all  parts 
of  the  same  plan,  the  defendants  are  alike  liable  for  the  injury 
which  the  city  has  sustained. 

Demurrer  overruled. 

Note.— See,  also,  Miller  vs.  Louisville,  etc.,  R.  B.  Co.,  83  Ala.  274,  3 
Am.  St.  Rep.  722;  U^iited  States  Rolling  Stock  Co.  vs.  Atlantic,  etc.,  R. 
R.  Co.,  34  Ohio  St.  450,  32  Am.  Rep.  380;  Hegemnyer  vs.  Marks,  37  Mum. 
6,  6  Am.  St.  Rep.  80S;  note  to  Potter's  Appeal,  7  Am.  St.  Rep.  280. 


(Law  Eeports,  1891,  1  Q.  B.  Div.  168.) 

MAYOK,  ETC.,  OF  SALFORD  vs.  LEVER. 

(English  Court  of  Appeal,  November,  1890.) 

Plaintiffs  were  the  proprietors  of  the  gas  works  in  their  borough 
and  purchased  large  quantities  of  coal.  One  Hunter  was  manager 
of  the  gas  works,  and  ifc  was  his  duty  to  examine  tenders  for  coal 
and  report  to  the  plaintiff.  Defendant  was  a  coal  merchant  and 
submitted  tenders  for  coal.  In  order  to  induce  Hunter  to  recom- 
mend the  acceptance  of  his  tenders,  he  secretly  agreed  to  pay 
Hunter  a  commission  of  one  shilling  per  ton.  To  this  Hunter 
assented,  and  it  was  agreed  between  them  that  the  tenders  should 
be  raised  one  shilling  per  ton,  and  that  when  defendant  received 
his  pay  from  plaintiffs  he  would  pay  Hunter  his  commission. 
Hunter  advised  the  acceptance  of  defendant's  tender,  and  defend- 
ant furnished  coal  until  the  amount  of  the  commission  amounted 
to  £2,3-(J9,  of  which  Hunter  had  received  about  £1,500. 

Hunter  made  like  agreements  with  other  parties  until  the  amount 
of  overcharges  (including  the  above)  which  plaintiffs  had  paid 
exceeded  £10,000. 


602  Cases  on  Agency.  [Book  IV 

Plaintiffs  bronglit  actions  against  Hunter  to  recover  the  amount 
of  these  commissions  or  bribes,  when,  at  Hunter's  request,  an  agree- 
ment between  himself  and  plaintiffs  (not  under  seal)  was  entered 
into  by  which  Hunter  deposited  £10,000  to  secure  plaintiffs  against 
loss,  the  action  against  him  was  stayed  and  plaintiffs  were  to 
attempt  to  recover  from  the  defendant  and  others  who  had  secured 
the  money,  the  amount  recovered  to  apply  to  reduce  Hunter's 
liability  and  when  paid  in  full,  he  was  to  be  discharged.  This 
action  was  thereupon  begun  and  a  judgment  was  rendered  for  plaint- 
iffs for  £2329.     Defendant  appealed. 

Lawson  Walton,  Q.  C,  for  the  defendants. 

The  learned  judge  misdirected  the  jury  in  not  telling  them  that 
the  release  given  by  the  person  wronged  to  one  of  two  joint  tort- 
feasor's operates  as  a  release  of  the  other  also,  and  that  acceptance 
of  satisfaction  from  the  one  amounts  to  a  receipt  of  satisfaction 
from  the  other,  and  is  an  answer  to  an  action  against  him  by  the 
person  wronged;  Co.  Litt.  232ff.  Bri7ismead  vs.  Harrison,  Law 
Eep.  7  0.  P.  547;  Bird  vs.  Randall,  3  Burr.  1345;  CocJce  vs.  Jen- 
nor.  Hob.  66;  Buckland  vs.  Johnson,  15  0.  B.  145. 

The  corporation  agreed  to  maintain  their  own  cause  of  action 
against  Lever  and  the  other  contractors,  and  to  give  Hunter  the 
benefit  of  it.  The  proceeds  of  the  litigation  were  to  go  to  him. 
The  effect  of  the  agreement  with  Hunter  was,  to  diminish  the 
amount  of  damages  which  the  corporation  could  recover  from 
Lever. 

Henn  Collins,  Q.  C.  and  C.  Gould,  for  the  plaintiffs. 

The  plaintiffs  were  entitled  to  recover  from  Hunter,  their  agent, 
the  bribes  which  he  had  received  from  Lever,  and  they  had  also  a 
separate  and  independent  right  of  action  against  Lever,  or  against 
him  jointly  with  Hunter,  to  recover  from  Lever  the  excess  of  the 
price  which  they  had  paid  to  him  above  the  price  which  he  would 
have  demanded,  but  for  his  agreement  with  Hunter  to  pay  him 
the  1  s  per  ton. 

A  bribe  received  by  an  agent  belongs  ipso  facto  to  his  principal;  an 
action  by  the  principal  for  money  had  and  received  to  his  use  will 
lie  in  respect  of  it.  But  the  principal  can  also  sue  the  briber  Lever, 
for  the  1  s  per  ton  excess  of  price  which  they  have  paid  him,  and  he 
cannot  set  off  against  their  claims  the  bribe  which  he  has  paid 
Hunter.  This  right  of  the  principal  against  the  agent  is  independ- 
ent of  his  affirming  or  disaffirming  the  contract  with  the  third  party. 


Chap.  VII]     Mayor,  Etc.,  of  Salford  vs.  Lever.  e03 

Parker  vs.  McKenna,  Law  Kep.  10  Ch.  96,  118;  Emma  Silver 
Mining  Co.  vs.  Grant,  11  Ch.  D.  918,  937;  Bagnall  vs.  Carlton,  6 
Ch.  D.  371.  If  the  plaintiffs  had  brought  their  action  against 
Lever  before  making  any  claim  against  Hunter,  it  would  be  no 
defense  for  Lever  to  say,  "  I  bribed  your  agent."  That  would  not 
amount  to  a  plea  of  payment. 

[Lord  EsHER,  M.  R.  If  they  received  the  money  from  Lever, 
could  they  go  on  and  recover  it  again  from  Hunter?]  ' 

They  could  recover  the  same  amount  from  him,  but  it  would  not 
be  the  same  money.  [Lindley,  L.  J.,  referred  to  Lister  &  Co.  vs. 
Stubbs,  45  Ch.  D.  1.] 

It  must  be  immaterial  whether  the  principal  sues  his  agent  or 
the  third  party  first,  the  fraud  gives  him  a  right  to  recover  some- 
thing more  than  mere  damages.  If  the  plaintiffs  had  sued  Hunter 
first,  their  right  to  sue  Lever  would  have  remained  unaffected. 
Then  the  question  arises.  How  does  the  agreement  with  Hunter 
affect  their  rights?  It  is  submitted  that  it  does  not  affect  them  at 
all.  The  law  as  to  the  effect  of  a  release  of  one  of  two  joint  tort- 
feasors has  no  application. 

The  rights  of  action  arising  out  of  the  fraud  are  several  and  inde- 
pendent. If  the  fraud  of  the  agent  had  damaged  the  principal 
to  a  greater  extent  than  the  amount  of  the  bribe,  the  principal 
could  sue  him  for  damages,  as  well  as  for  the  amount  of  the  bribe. 
If  the  agreement  is  ultra  vires,  it  cannot  be  a  defense  to  the  action. 
But  the  plaintiffs  do  not  desire  to  take  either  this  objection  or  the 
objection  that  the  agreement  was  not  under  seal.  If  the  agree- 
ment is  binding,  it  does  not  amount  to  either  a  release  of  Hunter 
or  an  accord  and  satisfaction;  unless  it  amounts  to  one  or  other  of 
these,  it  cannot  be  a  defense  to  the  action.  A  covenant  not  to  sue 
one  of  two  joint  debtors  does  not  operate  as  a  release  of  the  other. 
Hutton  vs.  Eyre,  6  Taunt.  289.  A  fortiori,  a  covenant  not  to  sue 
one  for  a  specified  time,  cannot  so  operate.  In  this  agreement 
there  is  not  any  express  covenant  not  to  sue  Hunter. 

There  is,  at  the  most,  an  implied  covenant  not  to  sue  him  for 
a  specified  time.  The  assistance  of  Hunter  was  necessary  to  enable 
the  plaintiffs  to  discover  the  fraudulent  contractors,  and  the  agree- 
ment amounts  only  to  this,  that  if  Hunter  would,  by  depositing 
securities,  guarantee  that  the  plaintiffs  should  recover  £10,000, 
they  would  for  a  specified  time  sue  only  the  contractors.  At  the 
end  of  that  time  it  would  be  open  to  them  to  sue  him  upon  his 
guarantee.     The  contract  is  with  one  tort-feasor  that  the  plaintiffs 


604  Cases  on  Agency.  [Book  lY 

will  (if  they  can)  recover  tlie  money  from  the  other,  and  as  consid- 
eration for  this,  he  gives  them  security  to  the  amount  of  £10,000. 
Such  an  agreement  is  no  defense  to  an  action  against  the  other  tort- 
feasor. 

Lawson  Walton",  Q.  C,  in  reply:  Lever  was  not  the  servant, 
of  the  plaintiffs.  He  was  really  paying  Hunter  a  part  of  his  own 
profits.  The  action  against  him  is  for  damages,  which  would  not 
be  liquidated  until  the  verdict  of  the  Jury.  A  plaintiff  who  claims 
damages  is  bound  to  prove  that  he  has  suffered  some  loss.  If  he 
has  been  reimbursed  in  any  way  he  has  suffered  no  loss.  To  the 
extent  of  what  Hunter  has  paid  them,  the  plaintiffs  have  been 
compensated  for  their  loss,  and  cannot  recover  damages  against 
Lever. 

Cur.  adv.  vult. 

Nov.  1.  Lord  Esher,  M.  R.  The  corporation  of  Salford  have 
brought  this  action  against  the  defendant,  who  is  a  coal  merchant, 
and  it  is  an  action  founded  on  fraud.  What  is  the  fraud  which  the 
defendant  had  committed?  He  had  coals  to  sell,  and  he  was 
obliged  to  make  a  bargain  with  the  corporation  through  their  agent, 
a  man  who,  no  doubt,  would  be  known  in  Salford  as  having  the 
power  to  make  contracts  for  the  corporation,  and  who,  conse- 
quently, would  be  looked  to  by  traders.  The  defendant  knew  that 
this  man  was  the  agent  of  the  corporation,  and  that  his  duty  was  to 
buy  coals  for  them  at  the  price  at  which  the  defendant  or  some 
other  trader  was  willing  to  sell  them. 

The  defendant  was  at  liberty  to  sell  the  coals  at  any  price  he 
could  get  for  them,  not  necessarily  at  the  market  price,  but  at  the 
best  price  which  he  could  obtain.  He  was  bound,  however,  to  act 
honestly.  He  offered  this  man  Hunter  to  sell  him  coal  at  a  price 
which  would  give  him  such  a  profit  as  he  desired.  But  then 
Hunter  tempted  him  by  saying:  **  You  want  to  sell  your  coals  at 
a  price  which  will  give  you  a  profit.  I  have  the  power  of 
buying  coals  from  you  or  from  anybody  else,  and  I  will  not  buy 
them  from  you  at  the  price  at  which  you  are  willing  to  sell  them, 
unless  you  will  help  me  to  cheat  the  corporation  out  of  another 
shilling  a  ton.  You  are  to  have  your  price;  but  you  are  to  add  to 
it  in  the  bills  which  you  send  to  the  corporation  another  shilling 
per  ton,  making  the  real  price  apparently  a  shilling  per  ton  more; 
but  that  shilling  is  to  be  mine — you  are  to  give  it  to  me.**  They 
call  this  a  commission,  a  term  very  well  known,  at  all  events  in 
the  north  of  England,  and  commissions  sometimes  cover  a  multi- 


Chap.  VII  ]      Mayor,  Etc.,  of  Salfoed  vs.  Levee.  COS 

tnde  of  sins.     In  the  present  case  it  Tvae  meant  to  cover  a  fraud. 

The  fraud  was  this,  that  the  defendant  allowed  and  assisted  the 
agent  of  the  corporation  to  put  down  a  false  figure  as  the  price  of  the 
coals  in  order  to  cheat  the  corporation  out  of  a  shilling  a  ton  which 
was  to  be  paid  to  their  own  agent;  and  the  way  in  which  it  was 
done  was  this:  The  defendant  sent  in  a  bill  to  the  corporation  for 
the  whole  price  thus  increased.  He  got  the  advanced  price  into 
his  hands,  and  as  he  got  it  by  fraud,  he  is  bound  to  pay  it  back 
unless  something  has  happened  to  oust  the  right  of  the  corporation. 
The  damage  to  the  corporation  is  clearly  the  one  shilling  per  ton, 
out  of  which  they  have  been  cheated,  neither  more  nor  less.  The 
form  of  the  action,  on  which  some  stress  has  been  laid  in  the  argu- 
ment, is  immaterial.  Unless  something  has  happened  to  oust  the 
right  of  the  corporation,  they  are  entitled  to  sue  the  defendant  for 
the  1  8.  a  ton  in  one  form  of  actiofl  or  another,  although  he  has 
parted  with  the  money,  and  has  handed  it  over  to  his  confederate 
Hunter,  because  it  was  once  in  his  hands,  and  he  is  liable  for  the 
fraud  to  which  he  was  thus  a  party. 

But  the  defendant  says  that  something  has  happened  which  pre- 
vents the  corporation  from  enforcing  this  right,  and  the  first  ground 
which  was  taken  was  this:  that  this  money  which  came  into  his 
hands  passed  into  the  hands  of  Hunter,  the  agent  of  the  corpora- 
tion, and  they  have  recovered  it,  or  part  of  it,  from  Hunter,  and 
therefore  cannot  recover  it  from  the  defendant.  This  defense  was 
advanced  independently  of,  and  without  reference  to,  the  agree- 
ment between  the  corporation  and  Hunter.  On  what  ground 
have  the  corporation  recovered  the  money  from  Hunter?  Hunter, 
their  agent,  had  received  money  from  the  defendant,  for  the  per- 
formance of  a  duty  which  he  was  bound  to  perform  without  any 
Buch  payment.  Nothing  in  law  could  be  more  fraudulent,  danger- 
ous, or  disgraceful,  and  therefore  the  law  has  struck  at  such  con- 
duct in  this  way. 

It  says  that  if  an  agent  takes  a  bribe  from  a  third  person,  whether 
he  calls  it  a  commission  or  by  any  other  name,  for  the  performance 
of  a  duty  which  he  is  bound  to  perform  for  his  principal,  he  must 
give  up  to  his  principal  whatever  he  has,  by  reason  of  the  fraud, 
received  beyond  his  due.  It  is  a  separate  and  distinct  fraud  of  the 
agent.  He  might  have  received  the  money  without  any  fraud  of 
the  person  who  was  dealing  with  him.  Suppose  that  person  thought 
that  the  agent  was  entitled  to  a  commission,  he  would  not  be 
fraudulent,  but  the  agent  would  be,  and  it  is  because  of  his  separate 


COG  Cases  on  Agency.  [Book  IV 

and  distinct  frand  that  the  law  says  he  must  give  up  the  money  to  hia 
principal.  It  signifies  not  what  it  may  be  called — whether  dam- 
ages or  money  had  and  received — the  f onndation  of  the  claim  of  the 
principal  is,  that  there  is  a  separate  and  distinct  fraud  by  his  agent 
upon  him,  and  therefore  he  is  entitled  to  recover  from  the  agent 
the  sum  which  he  has  received. 

But  does  this  prevent  the  principal  from  suing  the  third  person 
also,  if  he  has  been  fraudulent,  because  of  his  fraud?  It  has  been 
settled  that,  if  the  principal  brings  an  action  against  the  third 
person  first,  he  cannot  set  up  the  defence  that  the  action  cannot  be 
maintained  against  him  because  the  thing  was  done  through  the 
agent,  and  the  principal  was  entitled  to  sue  the  agent.  What  dif- 
ference can  it  make  that  the  principal  sues  the  third  party  secondly 
instead  of  first?  The  agent  has  been  guilty  of  two  distinct  and  in- 
dependent frauds — the  one  id  his  character  of  agent,  the  other  by 
reason  of  his  conspiracy  with  the  third  person  with  whom  he  has 
been  dealing.  Whether  the  action  by  the  principal  against  the 
third  person  was  the  first  or  the  second  must  be  wholly  immaterial. 
The  third  person  was  bound  to  pay  back  the  extra  price  which  he 
had  received,  and  he  could  not  absolve  himself  or  diminish  the 
damages  by  reason  of  the  principal  having  recovered  from  the  agent 
the  bribe  which  he  had  received. 

But  then  the  defendant  says — and  this  is  his  second  ground — 
that,  even  if  this  be  so,  the  corporation  have  entered  into  an  agree- 
ment with  their  agent  Hunter  which  prevents  them  from  suing  the 
defendant  in  respect  to  the  combined  fraud  of  Hunter  and  him- 
self. There  is  a  well  settled  rule  that,  if  there  are  two  joint  tort- 
feasors, and  the  third  person  to  whom  the  wrong  has  been 
done  releases  one  of  the  two,  he  cannot  afterward  sue  the  other. 
That  is  a  well  known  rule.  Whether  the  rule  goes  further,  and 
extends  to  an  accord  and  satisfaction  with  one  tort-feasor,  it  ia 
immaterial  now  to  consider.  Let  us  see  what  has  been  done.  It 
is  said  that  the  corporation  have  entered  into  an  agreement  with 
Hunter.  Though  the  corporation  will  not  take  the  objection  that 
the  agreement  is  not  under  seal,  I  am  not  sure  that  the  court 
ought  not  to  take  it,  seeing  that  the  defendant  has  been  guilty  of 
a  fraud. 

There  is  in  fact  no  agreement  at  all  which  is  binding  on  the 
corporation,  because  the  alleged  agreement  does  not  bear  their  seal. 
First,  then,  there  is  no  agreement;  and,  secondly,  even  supposing 
there  is  an  agreement   such  as  the   defendant    alleges,    namely, 


Chap.  VII  ]      Matoe,  Etc.,  of  Salford  vs.  Levee.  607 

that  the  corporation  undertook  to  bring  action  in  the  first  instance 
against  the  third  parties,  at  his  request  and  at  his  expense,  to 
recover  the  extra  price  which  they  had  received,  that  would  not,  as 
far  as  I  can  see,  be  a  compromise  of  a  doubtful  claim.  It  was  an 
absolute  agreement  entered  into  by  the  officers  of  the  corporation, 
and,  if  it  were  binding  on  the  corporation,  they  bound  themselves 
to  bring  the  actions  at  the  request  of  Hunter,  and  thus  lost  their 
independence  as  to  whether  these  actions  should  proceed  or  not. 
If  the  actions  failed,  the  corporation  would  be  primarily  liable  for 
the  costs  to  the  persons  against  whom  they  were  brought.  It  was 
true  they  were  to  get  the  costs  from  Hunter;  but  they  would  be 
primarily  liable.  They  had  given  up  their  independence,  and  had 
bound  themselves  to  bring  the  actions  whether  they  were  likely 
to  be  successful  or  not.  They  had  bound  the  ratepayers  to  pay  the 
costs  in  the  first  instance,  if  the  actions  failed,  and  to  take  the 
chance  of  Hunter  paying  them,  and,  supposing  Hunter's  securities 
proved  insufficient,  the  ratepayers  would  lose  these  costs.  Under 
these  circumstances,  speaking  for  myself  alone,  I  am  of  opinion 
that  the  agreement  was  wholly  ultra  vires  the  corporation.  They 
had  no  mandate  from  the  ratepayers  to  agree  to  it. 

But,  suppose  that  difficulty  to  be  got  over,  what  was  the  effect 
of  the  agreement?  Was  it  a  release  of  Hunter  in  respect  to  the 
combined  fraud?  Certainly  it  was  not  a  release,  it  did  not  purport 
to  be  that;  moreover,  it  was  not  under  seal,  and  it  cannot  therefore 
be  dealt  with  as  a  release.  And,  when  the  terms  of  the  agree- 
ment are  looked  at,  it  was  clearly  not  a  release  of  Hunter.  It  is 
perfectly  true,  as  Mr.  Henn  Collins  has  pointed  out,  that  the  agree- 
ment merely  suspended  the  action  of  the  corporation  against 
Hunter,  and  left  it  open  to  them  to  sue  him  afterwards,  should 
circumstances  arise  in  which  they  might  think  it  right  to  do  so. 
It  was,  in  fact,  nothing  more  than  a  postponement  of  their  right 
of  action,  and  that  of  itself  cannot  prevent  them  from  suing  Lever. 
Therefore,  upon  almost  every  ground  upon  which  the  case  can  be 
looked  at,  there  is  no  defense  to  this  action,  and  the  defendant  is 
liable.  I  know  the  result  of  it  all  may  be  this — that  the  corpora- 
tion will  recover  their  money  from  the  defendant,  and  from  other 
traders  in  a  similar  position  against  whom  they  may  proceed,  and 
that  Hunter  will  have  the  benefit  of  it. 

Certainly  the  corporation  cannot  legally  return  to  Hunter  the 
money  which  they  may  thus  recover.  It  belongs  to  the  ratepayers, 
and  the  corporation  have  no  possible  right  to  pay  it  over  to  Hunter. 


608  Cases  on  Agency.  [Book  IV 

But  the  result  will  be  the  same.  These  coal  dealers,  who  were  tempted 
by  Hunter  and  persuaded  by  him  to  pay  to  him  the  bribes,  will  be  the 
sufferers.  They  may  be  ruined;  and  Hunter,  when  he  comes  out 
of  prison,  may  find  the  securities,  which  are  the  result  of  his  plunder 
and  his  gross  frauds,  untouched,  and  he  may  retain  the  whole  of 
the  money  which'  he  has  received  in  this  way.  I  am  sorry  for  it, 
but  such  in  my  oioinion,  is  the  law.  It  follows,  therefore,  that  the 
defendant  has  no  defense,  and  the  judgment  of  the  Divisional 
Court  must  remain,  and  the  appeal  must  be  dismissed. 
LiNDLEY  and  Lopes,  L.  JJ.,  concurred  in  the  dismissal. 

Note. — Compare  with  Atlee  vs.  Fink,  ante,  p.  14;  Smith  vs.  Sorby,  3  Q. 
B.  Div.  552;  Harrington  vs.  Dock  Co.,  Id.  453;  Panama  Co.  vs.  India  Bub- 
ber  Co.,  L.  R.  10  cli.  ap.  515. 


(55  Vermont,  670,  45  Am.  Rep.  639.) 

ST.  JOHNSBURY  AND  LAKE   CHAMPLAIN  RAILROAD 
CO.   vs.    HUNT. 

fSupreme    Court   of    Vermont,    October,    1S8S.J 

Action  by  the  railroad  company  to  recover  damages  against 
defendant  for  maliciously  causing  the  arrest  of  its  engineer,  Col- 
lins, while  running  his  train,  with  intent  to  injure  the  company. 
Judgment  for  defendant  below,  upon  demurrer  to  the  declaration. 

Belchn  (&  Ide,  for  plaintiff. 

P.  K.  Glecd,  for  defendant. 

Veazey,  J.  (After  holding  that  the  declaration  stated  a  case 
of  injury  to  the  plaintiff.)  It  is  further  contended  in  behalf  of 
the  defendant  that  Collins  being  the  injured  party  has  his  action 
for  the  injury  done,  and  that  the  defendant  ought  not  to  be  sub- 
jected to  two  actions  for  the  same  act. 

It  is  admitted  under  the  demurrer  that  this  plaintiff  was  injured 
by  the  act  of  the  defendant,  which  we  hold  was  wrongful.  It  is 
no  answer  to  a  claim  for  this  injury  to  say  that  this  act  also  injured 
another  party. 

Each  party  suffering  directly  from  a  wrongful  act  is  entitled  to 
a  remedy  against  the  wrong-doer.  A  single  act  of  trespass  destroy- 
ing one  man's  arm  and  another  man's  leg  would  create  a  right  of 


Chap.  VII  ]  Raileoad  Co.  vb.  Hunt.  609 

action  in  each  separately.  Further  snggestion  is  made  that  the 
declaration  contains  no  averment  that  the  suit  agranst  Collins  has 
terminated  in  his  favor,  and  that  the  same  rule  should  apply  here 
as  though  this  were  hio  suit  for  malicious  prosecution.  This  sug- 
gestion is  made  upon  the  assumption  that  the  declaration  shows  a 
privity  between  Collins  and  the  railroad  company  in  respect  to  the 
subject-matter  of  the  suit  against  Collins.  Treating  the  assump- 
tion as  correctly  made,  how  does  the  case  stand?  The  declaration 
states  in  substance  that  the  suit  ag^ainst  Collins  was  utterly  ground- 
less and  hopeless.  The  demurrer  admits  this.  The  rule  that  the 
plaintiH  in  an  action  purely  for  malicious  prosecution  should  allege, 
and  prove  that  the  original  proceeding  has  terminated  in  his  favor, 
rests  on  the  ground  that  the  court  will  not  tolerate  inconsistent 
judgments  upon  the  same  question  between  substantially  the  same 
parties.  But  there  is  a  class  of  actions  for  malicious  prosecution 
where  it  has  been  held  that  an  admission  that  the  alleged  malicious 
Buit  could  not  be  maintained  obviated  the  necessity  of  proving  it 
had  terminated.  Wills  vs.  Noyes,  12  Pick.  326;  Page  vs.  Gushing, 
38  Me.  527.  In  the  latter  case  it  was  held  that  the  admission  may 
be  by  plea  or  by  parol. 

The  court  there  say:  "The bare  possibility  of  inconsistent  verdicts 
should  not  exempt  or  relieve  a  party  from  responsibility  for 
admitted  wrong. ''  This  declaration  does  not  state  what  became  of 
the  other  suit.  The  demurrer  admits  it  was  malicious,  false  and 
hopeless.  Any  presumption  of  probable  cause,  or  that  Hunt  was 
in  the  pursuit  of  a  legal  right  against  Collins,  is  overcome  by  the 
admission.  The  technical  averment  which  this  declaration  lacks  is 
supplied  by  averments  admitted  to  be  true,  showing  that  the  result 
must  follow  or  must  have  occurred  which  the  omitted  averment 
would  have  alleged  had  occured.  But  if  this  answer  to  the  above 
suggestion  is  unsound,  upon  what  ground  would  this  plaintiff  be 
estopped  by  a  judgment  against  the  defendant  in  the  former  suit, 
so  far  as  anything  is  disclosed  in  this  declaration?  It  was  not  a 
party  thereto,  nor  was  it  vouched  in  to  defend.  It  neither 
assumed,  nor  had  the  opportunity  to  control  the  defense.  It  was 
not  in  a  situation  to  prevent  a  judgment  against  the  defendant 
therein  by  collusion,  by  default,  by  ignorance,  or  by  concession  or 
compromise. 

Judgments  are  conclusive  only  upon  parties  and  those  claiming 
under  them.  This  rule,  upon  the  ground  that  a  principal  and 
39 


610  Oases  on  Agency.  [Book  IV 

lervant  are  substantially  one  in  interest,  might  well  be  expanded  so  as 
to  admit  it  in  a  suit  against  a  servant  when  the  same  question  has 
been  decided  and  judgment  rendered  for  the  defendant  in  a  suit 
against  the  master  for  the  alleged  trespass  of  the  servant  for  which 
the  master  is  responsible,  as  illustrated  in  the  case  of  Emery  vs. 
Fowler,  39  Me.  326,  63  Am.  Dec.  627;  but  such  is  not  this  case. 
The  general  rule  is  that  the  master  is  responsible  for  the  acts  of 
the  servant,  but  there  are  several  exceptions.  Dnnlap*s  Paley, 
Agency,  298.  There  may  also  be  wrongs  committed  by  the  servant 
for  which  the  master  only  is  responsible.  2  Hill.  Torts,  554.  The 
relative  status  of  this  plaintiff  and  its  engineer  as  to  the  wrong 
charged  upon  the  latter  cannot  be  certainly  determined  from  this 
declaration,  but  treating  it  as  a  trespass  for  which  this  plaintiff 
was  responsible,  then  they  could  have  been  sued  together  or  sepa- 
rately, and  they  could  have  defended  each  independently  of  the 
other.  Judgment  unsatisfied  against  either  separately  would  be 
no  bar  to  another  suit  against  the  other. 

This  point  was  settled  early  in  this  state  in  the  case  of  Sander- 
son vs.  Caldwell,  2  Aik.  195,  where  the  authorities  are  cited  and 
fully  discussed  by  Judge  Prentiss.     In  the  later  case  of  Andrus 
vs.  Howard,  36  Vt.  248,  84  Am.  Dec.  680,  the  further  question, 
somewhat  controverted  elsewhere,  was  here  settled  that  the  master 
is  liable  in  trespass  for  an  act  of  his  servant,  which  is  a  trespass, 
though  it  occur  through  the  neglect  or  unskillfulness  of  the  servant. 
As  joint  trespassers,  independent  of  the  relation  of  master  and 
servant,  it  is  plain  the  former  judgment  for  the  plaintiff,  if  there 
was  one,  would  not  conclude  this  plaintiff.     With  this  relation 
existing,  if  the  judgment  was  there  for  the  defendant,  it  is  equally 
plain  that  it  would  not  have  concluded  the  plaintiff  therein  from 
another  action  against  this  plaintiff,  if  the  former  action  failed, 
on  the  ground  that  the  wrong  which  the  former  plaintiff  suffered, 
though  committed  by  the  servant,  was  one  for  which  this  plaintiff 
only,  if  anybody,  was  liable.     **  No  person  can  bind  another  by  any 
adjudication,  who  was  not  himself  exposed  to  the  peril  of  being 
bound  in  like  manner,  had  the  judgment  resulted  the  other  way." 
Freeman  on  Judgments,  §  154;  or,  as  expressed  by  Spencer,  J., 
in  Case  vs.  Reeve,  14  Johns.  83:    "No  person  can  derive  benefit 
from  a  verdict  who  would  not  have  been  prejudiced  by  it,  had  it 
gone  contrary."    "  If,  therefore,  a  state  of  facts  might  be  disclosed 
which  would  preclude  the  application  of  the  maxim,  res  inter  alios 


Chap.  VII]  Railroad  Co.  vs.  Hunt.  Gil 

acta,  etc.,  which  is  doubtful,  this  declaration  fails  to  disclose  them. 
The  reason  of  the  maxim  as  expressed  by  Wharton,  184,  is,  that 
it  would  be  unjust  to  bind  a  person  by  proceedings  taken  behind 
his  back,  to  which  he  was,  in  fact,  no  party,  and  to  which  he  had 
not  an  opportunity  of  making  a  defense,  and  from  which  he  could 
not  appeal.  Nason  vs.  Blaisdell,  15  Vt.  171.  We  think  no 
privity  is  disclosed  in  this  declaration  between  the  railroad  com- 
pany and  its  engineer,  in  respect  to  the  point  involved  in  the  other 
action.  It  is  further  insisted  that  the  action  cannot  be  main- 
tained because  the  damages  are  inconsequential  and  too  remote. 
We  think  the  injury  and  damages  were  direct.  They  were  not 
only  such  as  could  reasonably  have  been  contemplated  at  the  time, 
which  is  one  of  the  tests  laid  down  in  Sedgwick  on  Damages,  vol. 
1,  marg.  p.  66-7,  but  they  were  the  damages  actually  contemplated. 
In  Derry  vs.  Flitner,  118  Mass.  131,  the  court  say:  "A  wrong- 
doer is  liable  not  only  for  those  injuries  which  are  caused  directly 
and  immediately  by  his  act,  but  also  for  such  consequential  injuries 
as,  according  to  the  common  experience  of  men,  are  likely  to  result 
from  his  act.-*'  Sedgwick,  88,  says  the  disposition  of  courts  is  to 
include  in  the  injurious  consequences,  flowing  from  the  illegal  act, 
those  that  are  "very  remote."    No  extreme  view  is  required  here. 

It  cannot  be  said  that  the  stoppage  and  delay  of  the  plaintiff's 
train  was  a  remote  result  of  the  defendant's  act.  It  was  the 
probable,  if  not  necessary,  result.  And  it  was  in  fact  the  direct, 
proximate,  immediate  and  contemplated  result.  Familiar  cases, 
often  cited  as  showing  what  damages  are  not  too  remote  to  be 
included  in  the  recovery  are,  McAfee  vs.  Crcfford,  14  How.  447; 
Gunter  vs.  Astor,  4  J.  B.  Moore,  12  (16  Eng.  Com.  Law,  357); 
Gribb  vs.  Sivan,  13  Johns.  (N.  Y.)  381;  Vanderberg  vs.  Traiix,  4 
Denio  (N.  Y.)  464,  47  Am.  Dec.  268;  Burroius  vs.  Coke  and  Gas 
Co.,  L.  R.  5  Ex.  67;  Scott  vs.  Kenton,  81  111.  96;  Tarhton  vs. 
McGawley,  Peake,  205.  In  the  latter  case  it  was  held  by  Lord 
Kenton,  at  Nisi  Prius,  that  an  action  lay  for  firing  on  negroes  on 
the  coast  of  Africa,  and  thereby  deterring  them  from  trading  with 
the  plaintiff,  so  that  the  plaintiff  lost  their  trade.  There  the 
trespass  was  directly  against  the  negroes,  but  the  wrong  intended 
and  the  injury  actually  done  was  to  the  plaintiff. 

The  defendant  cites  the  case  of  Ashley  vs.  Harrison,  Peake,  194, 
where  the  proprietors  of  a  theater  brought  an  action  against  the 
defendant  for  having  written  a  libel  upon  one  of  the  plaintiff's 
singers,    by    which   he   was  deterred   from    appearing,    whereby 


612  Cases  on  Agency.  [Book  IV 

his  profits  were  lost.  Lord  Kenton  held  that  the  damages  were 
too  remote,  but  this  was  on  the  ground  that  the  damages  arose 
from  the  vain  fears  or  caprice  of  the  actress.  She  could  have  sung 
but  would  not.  Her  fears  or  caprice  intervened  between  the 
wrongful  act  and  the  alleged  result.  To  make  the  case  parallel  to 
this  she  should  have  been  driven  from  the  stage  while  performing 
her  part,  by  unlawful  interference  of  the  defendant,  for  the 
purpose  of  injury  to  the  plaintiff.  See  Hughes  vs.  McDonoughy  14 
Vroom,  459,  s.  c,  39  Am.  Kep.  603. 

The  pro  forma  decision  of  the  county  court  is  overruled,  and  the 
first  count  is  adjudged  sufficient,  and  the  cause  is  remanded  with 
leave  to  the  defendant  to  replead,  upon  the  usual  terms. 

Reversed  and  remanded. 

Note.— See  this  case  when  before  the  court  again;  60  Vt.  588,  6  Am.  St. 
Rep.  138. 


Chap.  I  ]  Maxtee  of  Moskess.  613 


BOOK    V. 

PARTICULAR  CLASSES  OF  AGENTS. 


CHAPTER  I 

OF  ATTORNEYS  AT  LAW. 


I. 

OP  THE   OFFICE. 


(39  Wisconsin,  509,  20  Am.  Rep.  65.) 

MATTER  OF  MOSNESS. 

^Supreme   Court  of  Wisconsin,  January,  1876.) 

Motion  for  the  admission  of  Ole  Mosness  to  the  bar  of  this  court, 
as  an  attorney  and  counselor  thereof.  It  appeared  from  his  peti- 
tion that  he  was  a  resident  of  the  state  of  Illinois. 

Ryan,  C.  J.  It  is,  we  believe,  the  general  practice  of  courts  of 
record  in  the  several  states,  to  permit  gentlemen  of  the  bar  in  other 
Btates  to  appear  as  counsel  on  the  trial  or  argument  of  causes. 
Such  has  been  the  uniform  practice  of  this  court.  And,  under  all 
ordinary  circumstances,  it  will  always  be  a  pleasure  to  us  to  permit 
members  of  the  bar  of  other  states  to  argue  causes  here,  whenever 
they  may  appear  here  to  do  so.  No  license  to  practice  here  is 
necessary  or  proper  for  that  purpose;  the  usual  and  proper  practice 
being  to  grant  leave  ex  gratia  for  the  occasion. 

But  general  license  to  practice  here  as  attorney  and  counselor 


614  Oases  on  Agency.  [Book  V 

rests  upon  quite  different  considerations.  The  bar  is  no  unimport- 
ant part  of  the  court,  and  its  members  are  officers  of  the  court. 
TJcomas  vs.  Steele,  22  Wis.  207;  Cothren  vs.  Connanghton,  24  Id. 
134;  see  Bacon's  Abr.,  Attorney,  H;  1  Tidd's  Prac.  60;  3  Black. 
25;  1  Kent,  30G;  Ex  parte  Garland,  4  Wall.  (U.  S.)  333.  And  if 
officers  of  the  court,  certainly,  in  some  sense,  officers  of  the  State 
for  which  the  court  acts.  Ee  Wood,  Hopk.  (N.  Y.)  6.  This  is  not 
really  denied  in  20  Johns.  (N.  Y.)  492,  decided  in  the  same  year. 
And  if  it  were,  we  have  no  doubt  that  the  chancellor  was  correct; 
and  that  attorneys  and  counselors  of  a  court,  though  not  properly 
public  officers,  are  qtiasi  officers  of  the  State  whose  justice  is  admin, 
istered  by  the  court. 

The  state  may  have  extra-territorial  officers,  as  commissioners  to 
take  acknowledgments,  etc.  But  these  are  exceptions;  and  the 
general  business  of  the  state,  within  the  state,  executive,  legisla- 
tive and  judicial,  must  be  performed  by  citizens  or  denizens  of  the 
state;  and  the  officers  charged  with  it  must  be  residents  of  the 
state.  State  vs.  Smith,  14  Wis.  497;  State  vs.  Murray,  28  Wis. 
96,  9  Am.  Eep.  489. 

So  the  courts  may  have  extra-territorial  officers,  for  extra-terri- 
torial functions,  as  commissioners  to  take  depositions,  etc.  But 
for  all  functions  within  the  jurisdiction  of  the  courts,  their  officers 
must  be  residents  of  the  state.  This  is  essential  to  the  nature  of 
the  functions  themselves,  and  to  the  proper  control  of  courts  over 
their  officers. 

The  office  of  attorney  and  counselor  of  the  courts  is  one  of  great 
official  trust  and  responsibility  in  the  administration  of  justice;  one 
liable  to  great  abuse;  and  has  always  been  exercised,  in  all  courts 
proceeding  according  to  the  course  of  the  common  law,  subject  to 
strict  oversight  and  summary  power  of  the  court.  It  would  be  an 
anomaly,  dangerous  to  the  safe  administration  of  justice,  that  the 
office  should  be  filled  by  persons  residing  beyond  the  jurisdiction  of 
the  court,  and  practically  not  subject  to  its  authority.  We  take  it, 
that  members  of  the  bar  of  this  state  lose  their  right  to  practice 
here  by  removing  from  the  state.  After  they  become  nonresidents, 
they  can  appear  in  courts  of  this  state  ex  gratia  only.  Our  courts 
cannot  have  a  non  resident  bar. 

This  all  appears  to  us  to  be  so  very  plain,  that  it  is  difficult  to 
believe  that  ch.  50  of  1855  was  intended  to  do  more  than  to  author- 
ize the  appearance  here,  as  counsel  in  the  trial  and  argument  of 


Chap.  I]  Matter  of  Mosnesb.  615 

causes,  of  gentlemen  of  tlie  bar  of  other  States.  If  intended  to  do 
that  it  was  probably  unnecessary;  if  iiiteiided  to  do  more,  it  was 
clearly  without  the  power  of  the  Legislature. 

For  the  reason  only  that   the  gentleman   whose  admission  is 
moved  is  not  a  resident  of  the  State,  the  motion  must  be  denied. 


n 

PRESUMPTION   OP   AUTHORITY, 


(30  Kansas,  106,  46  Am.  Rep.  86.) 

REYNOLDS  vs.  FLEMING. 

(Supreme  Court  of  Kansas,  January,  1SS3.J 

Motion  to  set  aside  a  judgment  alleged  to  have  been  rendered 
without  jurisdiction.  The  opinion  states  the  facts.  Judgment 
below  for  plaintiff. 

Keller  &  Osterhold,  for  plaintiff  in  error. 

Broderick  &  Rafter  and  Hayden  &  Hay  den,  for  defendant  in  error. 

HoRTON,  C.  J.  The  evidence  introduced  upon  the  hearing  of 
the  motion  of  Robert  M.  RejTiolds  to  set  aside  and  vacate  the 
judgment  rendered  against  him  on  the  12th  of  June,  1882,  material 
for  our  consideration,  is  in  brief,  that  John  S.  Hopkins,  an  attorney 
at  law,  in  a  conversation  with  Case  Broderick,  one  of  the  attorneys 
of  W.  J.  Fleming  about  the  time  the  action  of  Fleming  against 
Reynolds  was  commenced,  said  to  Broderick,  to  save  the  expense 
of  publication  he  thought  that  Robert  M.  Reynolds  would  enter 
an  appearance;  that  Hopkins  filed  an  answer  in  the  case  for 
W.  M.  C.  Reynolds,  and  on  December  17,  1880,  filed  another 
answer  and  signed  himself  as  attorney  for  R.  M.  Reynolds; 
that  he  filed  the  answer  for  W.  M.  C.  Reynolds,  because 
the  latter  requested  him  to  attend  to  the  matter  for  hira;  that 
W.  M.  C.  Reynolds  told  him  to  stop  proceedings  against  his 
brother,  but  at  the  same  time  said  he  was  not  the  agent  for  his 
brother  and  had  no  authority  to  contract  for  him;  that  after  ho 
filed  the  answer  to  which  he  attached  his  name  as  attorney  for  II. 
M.   Revnolds  he  sent  a  copy  of  it  to  R.  M.  Reynolds  at  Wash- 


616  Cases  o^t  Agekcy.  [Book  V 

ington,  D.  C,  bnt  Ee3Tiolds  never  retnrned  this  copy;  instead 
thereof  he  sent  Hopkins  a  letter,  in  which  he  informed  him  he 
had  not  authorized  his  brother  to  act  for  him,  and  that  he  refused 
to  have  anything  to  do  in  the  matter;  that  after  Hopkins  received 
this  letter  from  Ptobert  M.  Eeynolds,  which  was  shortly  after  send- 
ing him  a  copy  of  the  answer,  and  before  the  trial,  he  told  Brod- 
erick  he  had  nothing  further  to  do  with  the  case,  and  would  not 
appear  further  for  Eobert  M.  Reynolds. 

Hopkins  also  testified  that  he  said  to  Broderick  before  the  trial, 
"  He  had  better  proceed  to  get  service  by  publication/'  Broderick 
testified  that  *'  Hopkins  told  him  the  reason  he  had  nothing 
further  to  do  with  the  case  was  on  account  of  fees,  and  he  did  not 
recollect  that  Hopkins  said  to  him  anything  about  publication 
subsequent  to  the  filing  of  the  answer." 

W.  M.  C.  Reynolds  testified  that  he  advised  his  brother,  Robert 
M.  Reynolds,  of  the  commencement  of  the  suit,  soon  after  it  was 
begun.  Robert  M.  Reynolds  testified  that  he  owned  the  real 
estate  decreed  to  be  sold  to  satisfy  the  judgment  rendered  on  said 
June  12th  and  that  he  resided  at  Washington,  D.  C. ;  had  lived 
there  for  four  years,  but  was  in  Kansas  some  time  in  1879;  that 
he  never  employed  W.  M.  C.  Reynolds,  his  brother,  to  act  as  agent 
in  getting  legal  advice  or  counsel,  or  to  employ  an  attorney  in  the 
action  of  W.  J.  Fleming  against  himself;  that  he  never  filed  an 
answer  in  the  case,  or  authorized  anyone  to  make  answer  for  him; 
that  he  utterly  refused  to  make  answer  to  the  proceedings,  and 
that  the  answer  filed  by  Hopkins  was  done  so  without  his  authority 
or  knowledge  or  consent;  that  when  he  received  a  letter  from 
Hopkins  inclosing  a  paper  to  be  signed  as  an  answer  in  the  case, 
he  promptly  replied  by  saying  he  utterly  refused  to  become  a  party 
to  the  proceedings,  and  refused  to  sign  or  return  the  paper;  that 
he  then  notified  Hopkins  he  could  not  recognize  him  as  his 
attorney  in  the  case,  and  since  that  time  he  has  never  written  to- 
him  or  spoken  to  him  about  the  matter;  that  Hopkins  has  not 
presented  his  bill  for  alleged  legal  services,  and  that  he  had  no  I 
paid  him  in  any  way  whatever;  that  he  was  never  notified  by  Hop- 
kins that  he  had  filed  any  paper  in  the  proceeding  as  his  agent  or 
attorney,  and  at  no  time  did  Hopkins  apprise  him  of  his  appear- 
ing for  him,  and  that  he  did  not  understand  an  answer  was  filed  in 
the  case  until  appraised  of  it  by  Keller  &  Osterhold,  attorneys  at 
law,  subsequent  to  the  rendition  of  the  judgment;  that  the  first 
notice  he  had  of  the  judgment  against  himself  was  the  notice  in  a 


Chap.  I]  Eeykolds  vs.  Fleming.  617 

newspaper  sent  him  by  some  person  unknown,  that  the  land  was 
to  be  sold  by  the  sheriff  of  Jackson  county;  that  subsequently  he 
received  a  copy  of  a  like  notice  from  his  brother. 

The  evidence  of  Robert  M.  Reynolds  was  introduced  by  deposi- 
tion, and  the  statements  therein  contained,  that  the  voluntary 
appearance  by  Hopkins  in  the  action  for  said  Reynolds  was  unauthor- 
ized, and  that  he  had  no  knowledge  of  the  filing  of  the  answer  in 
his  behalf  prior  to  the  rendition  of  the  judgment,  were  uncontra- 
dicted. 

Applying  the  law,  as  we  understand  it,  to  the  facts  established 
upon  the  hearing  of  the  motion,  the  court  below  should  have  sus- 
tained the  motion  and  vacated  the  judgment.  In  this  state  it  is 
held  that  a  judgment  rendered  without  jurisdiction  is  void;  that  a 
personal  judgment  rendered  without  notice  to  the  defendant  is 
rendered  without  jurisdiction,  and  is  consequently  void;  that  a 
judgment  void  for  want  of  notice  may  be  set  aside,  on  a  motion 
made  therefor  by  the  defendant;  and  that  this  may  be  done  in 
cases  where  it  requires  extrinsic  evidence  to  show  the  judgment  was 
rendered  without  notice  and  without  jurisdiction.  Civil  Code,  sec. 
575;  Butcher  vs.  Banh,  2  Kans.  70,  83  Am.  Dec.  446;  K.  P.  R. 
Co.  vs.  Sireeter,  8  Id.  133;  Foreman  vs.  Carter,  9  Id.  674;  Hanson 
vs.  Wolcott,  19  Id.  207;  Mastin  vs.  Gray,  Id.  458,  s.  c.  27  Am. 
Rep.  149. 

The  authority  of  an  attorney  to  appear  for  the  party  whom  he 
professes  to  represent,  is  presumed  until  the  contrary  is  shown;  and 
it  devolves  upon  the  party  impeaching  the  authority  to  show  by 
positive  proof  that  it  is  invalid.  In  some  of  the  states,  and  in 
many  of  the  early  decisions,  it  is  held  that  the  appearance  of  an 
attorney  for  a  defendant,  even  without  authority,  is  deemed 
sufficient  to  give  the  court  jurisdiction  over  his  person;  and  upon 
such  appearance  the  court  will  proceed  to  judgment,  and  leave  the 
defendant  to  his  remedy  against  the  attorney,  unless  the  attorney 
is  insolvent,  or,  appears  under  suspicious  circumstances,  or  through 
the  procurement  of  the  plaintiff.  But  the  better  authorities 
uphold  the  doctrine  that  any  judgment  rendered  without  jurisdic- 
tion, when  assailed  directly  may  be  impeached,  and  that  in  doing 
BO,  anything  contained  in  the  record  purporting  to  give  or  prove 
jurisdiction,  as  the  appearance  of  an  attorney,  may  be  contradicted 
by  any  evidence,  extrinsic  as  well  as  intrinsic,  and  may  be  shown 
to  be  untrue  and  false.     Masti)i  vs.  Gray,  supra. 

In  this  case  the  appearance  of  an  attorney  was  impeached  by  a 


618  Cases  on  Agency.  [Book  V 

motion  in  the  court  rendering  the  judgment,  and  the  motion  is  in 
the  nature  of  a  direct  proceeding  attacking  it.  If  the  attorney 
Hopkins  appeared  for  E.  M.  Eeynolds  without  his  knowledge  or 
authority,  express  or  implied,  he  ought  not  to  be  bound  by  the  act, 
if  never  ratified,  and  promptly  disavowed.  As  Eobert  M.  Eeynolda 
was  never  served  by  summons  or  by  publication,  the  court  had  no 
jurisdiction  of  his  person,  unless  jurisdiction  was  given  by  the 
appearance  of  the  attorney;  and  if  the  appearance  of  the  attorney 
was  unauthorized,  the  judgment  obtained  thereon,  within  the  latter 
decision,  is  void.  Dillon,  J.,  speaking  for  the  court  in  Harshey 
vs.  Blackmarr,  20  Iowa,  161,  89  Am.  Dec.  520,  said:  "  Certain  it  is, 
however,  that  the  party  is  entitled  to  relief  when  an  unjust  judg- 
ment, though  a  domestic  one,  has  been  rendered  against  him  by 
fraud  or  collusion,  or  by  the  appearance  of  an  unauthorized  attor- 
ney, if  the  party  seeks  the  relief  by  appeal  or  motion  promptly, 
and  has  been  guilty  of  no  laches. *' 

In  Shelton  vs.  Tiffin,  47  U.  S.  163,  6  How.  163,  it  was  decided: 
**  Where  a  citizen  of  Virginia  sued  in  the  circuit  court  of  Louisiana 
two  persons  jointly,  one  of  whom  was  a  citizen  of  Louisiana  and 
the  other  of  Missouri,  and  an  attorney  appeared  for  both  defend- 
ants, the  citizen  of  Missouri  was  at  liberty  to  show  that  the  appear- 
ance for  him  was  unauthorized.  If  he  showed  this,  he  was  not 
bound  by  the  proceedings  of  the  court,  whose  judgment,  as  to  him, 
was  a  nullity.*' 

In  tritchfield  vs.  Porter,  3  Ohio,  618,  it  was  held,  *'  That  when 
an  attorney  appears  for  a  party  in  a  suit  in  court  without  authority, 
the  party  is  not  concluded  by  his  acts,  but  may  be  relieved  against 
them.'*  And  in  the  opinion  supporting  this  declaration  of  law,  it 
was  said  by  Sherman,  J. :  **  The  mischief  that  might  follow  from 
holding  that  the  acts  of  the  unauthorized  attorney  are  conclusive 
upon  the  person  for  whom  he  appears,  would  induce  the  court  to 
hesitate  long  before  it  would  establish  such  a  rule.  It  would  in 
some  degree  subject  the  property  of  every  individual  in  the  com- 
munity to  the  mistakes  or  malice  of  a  particular  class  of  men." 

See  for  authorities  of  like  tenor  Laivrence  vs.  Jarvis,  32  111.  304; 
Arnott  vs.  Webb,  1  Dill.  362;  Price  vs.  Ward,  1  Dutch.  225;  Penny- 
wit  vs.  Foote,  27  Ohio  St.  600,  8.  c.  22  Am.  Eep.  340;  Dobbin  vs. 
iJujjree,  39  Ga.  394;  Wiley  vs.  Pratt,  23  Ind.  628.  See,  also, 
Wetkerhy  vs.  Wetherby,  20  Wis.  526;  Ferguson  vs.  Craivford,  70  N. 
Y.  253,  8.  0.  26  Am.  Eep.  589;  Clark  vs.  Little,  41  Iowa,  497; 
Madin  vs.  Gray,  sup 


Chap.  I  ]  Reynolds  ys.  Fleming.  619 

(Minor  matter  omitted). 

The  ruling  and  judgment  of  the  district  court,  will  be  reversed, 
and  the  cause  remanded. 

Judgment  reversed  and  cause  remanded. 


III. 

IMPLIED  AUTHOEITY   OP  ATTORNEY. 


(115  Massachusetts,  36,  15  Am.  Eep.  72.) 

MOULTON  vs.  BOWKER. 

f Supreme  Judicial  Court  of  Massachusetts,  March,  1874. J 

It  was  agreed  between  the  parties  that  the  only  legal  question 
was  whether  an  attorney  of  record  can  discliarge  an  attachment 
without  the  knowledge  or  authority  of  his  client,  and  in  fraud  of 
his  rights,  in  such  a  way  that  a  subsequent  bona  fide  purchaser  can 
get  a  good  title, 

R.  M.  Morse,  Jr.,  d  A.  E.  Pillshury,  for  demandants.' 

*  Note. — The  following  is  an  abstract  of  their  brief:  An  attorney  is  not 
dominus  litis.  He  has  no  power  to  give  up  the  security  of  his  client  with- 
out payment  or  express  authority.  Terhune  vs.  Colton,  2  Stock.  Ch.  21; 
Tanlcersley  vs.  Anderson,  4  Dessaus.  45.  Nor  to  release  sureties  upon  the 
claim  of  his  client  Savings  Inst.  vs.  Chinn,  1  Bush  (Ky.),  539;  Givens  vs. 
Briscoe,  3  J.  J.  Marsh.  (Ky.)  529,  532;  Union  Bank  vs.  Govan,  10  Sm.  & 
M.  (Miss.)  333.  Nor  to  discharge  a  hen  created  by  levy  of  execution. 
Banks  vs.  Evans,  10  Sm.  &  M.  35,  48  Am.  Dec.  731;  Benedict  vs.  Smith,  10 
Paige  (N.  Y.),  126.  Nor  to  release  a  lien  obtained  by  judgment,  or  to  dis- 
charge any  security  resulting  from  his  prosecution  of  the  claim.  And  an 
honest  behef  that  he  is  acting  in  his  client's  interest  cannot  supply  the 
defect  of  authority  to  make  such  an  arrangement.  Wilson  vs.  Jennings, 
8  Ohio  St.  528. 

He  may  control  the  manner  of  conducting  a  cause,  but  cannot  waive  any 
substantial  acquired  right  of  his  client.  Howe  vs.  Lawrence,  2  Zab.  (N. 
J.)  99.  He  may  not  release  a  third  person  for  the  purpose  of  making  him 
a  competent  witness.  Sliores  vs.  Caswell,  13  Mete.  (JIass.)  413;  Succcssio7i 
of  Weigle,  18  La.  An.  49;  Marshall  vs.  Nagel,  1  Bailey,  (S.  C.)  308.  Nor 
discharge  an  indorser  upon  a  note  committed  to  him  for  collection  without 
eatisfaction  or  the  express  consent  of  his  client.  East  River  Bank  vs.  Ken- 
nedy, 9  Bosw.  543;  Bowne  vs.  Hyde,  6  Barb.  392;  Kellogg  vs.  Gilbert,  10 
Johns.  (N.  Y.)  220,  6  Am.  Dec.  335;  Simonton  vs.  Barrcll,  21  Wend.  (N. 


620  Cases  on  Agency.  [Book  V 

J.  L.  Thorndilce,  for  tenant. 

Geat,  C.  J.  An  attorney  at  law  has  aufhority,  by  virtne  of  his 
employment  as  such,  to  do  in  bellalf  of  bis  client  all  acts,  in  or  out 
of  court,  necessary  or  incidental  to  the  prosecution  and  manage- 
ment of  the  suit,  and  which  affect  the  remedy  only,  and  not  the 
cause  of  action;  and  we  can  have  no  doubt  that  this  includes  the 
power  to  release  an  attachment,at  least  before  judgment,  which  is  all 
that  this  case  requires  us  to  consider.  Lewis  vs.  Sumner,  13  Mete. 
2G9;  Shores  vs.  Caswell,  Id.  413;  Wieland  vs.  White,  109  Mass.  392; 
Jenney  vs.  DeUsderjiier,  20  Me.  183;  Rice  vs.  Wilkins,  21  Id.  558; 

Y.)  862;  York  Bank  vs.  Appleton,  17  Me.  55;  Varnum  vs.  Bellamy,  4 
McLean,  87.  Nor  sell  or  assign  a  judgment  of  his  client.  Maxwell  vs. 
Owen,  7  Coldw.  (Tenn.)  630;  Baldwin  vs.  Merrill,  8  Humph.  (Tenn.)  132; 
CampbeWs  Appeal,  29  Penn.  St.  401,  72  Am.  Dec.  641;  Rowland  vs.  State, 
58  Id.  196.  Nor  discharge  a  judgment  or  execution  except  on  payment  in 
full.  Per  Coke,  C.  J.,  1  Rol.  R.  SGG;  Beers  vs.  Hendricl'son,  45  N.  Y.665; 
Levns  vs.  Woodruff,  15  How.  Pr.  539,  and  ca^^es  cited;  Wilson  vs.  Wadleigh, 
86  Me.  496,  and  cases  cited;  Harrow  vs.  Farrovj,  7  B.  Monr.  (Ky.)  126,  45 
Am.  Dec.  60;  Chavibers  vs.  Miller,  7  Watts  (Pa.),  63.  Nor  receive  any- 
other  thing  than  lawful  money  in  payment  of  his  client's  claim.  Sfack- 
house  vs.  O'Hara,  14  Penn.  St.  88;  Harper  vs.  Harvey,  4  W.  Va.  539. 
following  Smock  vs.  Dade,  5  Eand.  (Va.)  639,  16  Am.  Dec.  780;  Jeter  vs. 
Haviland,  24  Ga.  252;  Miller  vs.  Edmonston,  8  Blackf.  (Ind.)  291;  Jones  vs. 
Ransom,  8  Ind.  327;  Trumhull  vs.  Nicholson,  27  111.  149,  and  cases  cited; 
Lawson  vs.  Pettison,  7  Eng.  (Ark.)  401;  Kent  vs.  Ricards,  3  Md.  Ch.  392; 
Walker  vs.  Scott,  8  Eng.  (Ark.)  644;  Bailey  7's.  Bagley,  19  La.  An.  172; 
Wright  vs.  Daily,  26  Tex.  730;  West  vs.  Ball,  12  Ala.  340;  Clark  vs! Kings- 
land,  1  Sm.  &  M.  (Miss.)  248.  Nor  indorse  a  note  left  witli  him  for  collec- 
tion. Child  vs.  Eureka  Powder  Wo7'ks,  44  N.  H.  354.  Nor  compromise  a 
suit.  By  the  Master  of  the  EoUs  in  Swinfen  vs.  Swinfen,  27  L.  J.  (Ch.)  35; 
affirmed  by  Lords  Justices,  2  DeG.  &  J.  381.  Marshall,  C.  J.,  in  Holker 
vs.  Parker,  7  Cranch.  (U.  S.)  436;  Stokcly  vs.  Robinson,  34  Penn  St. 
815;  Huston  vs.  Mitchell,  14  S.  &  R.  (Pa.)  807;  Dodds  vs.  Dodds,  9  Penn. 
St.  815;  Abbe  vs.  Rood,  6  McLean,  106;  Derwort  vs.  Loomer,  21  Conn. 
245;  Kelley  vs.  Scott,  2  Sm.  &  M.  81.  Nor  employ  associate  coimsel, 
save  in  the  absence  of  his  client.  Briggs  vs.  Oeoi^gia,  10  Vt.  68.  Nor 
waive  the  right  of  inquisition.  Hadden  vs.  Clark,  2  Grant,  (Pa.) 
107.  Nor  accept  service  of  summons.  Masterson  vs.  Le  Claire,  14  Miim. 
163.  Nor  consent  to  a  judgment  against  his  client.  People  vs.  Lanbom, 
1  Scam.  (111.)  123.  Nor  enter  a  retraxit.  Lambert  vs.  Sanford,  2  Blackf. 
(Ind.)  137,  18  Am.  Dec.  149.  Nor  make  an  agreement  for  suspension  of 
proceedings  upon  a  judgment.  Pendexter  vs.  Vernon,  9  Humjih.  (Tenn.) 
84.  Nor  discharge  a  trustee.  Quarles  vs.  Porter,  12  Mo.  76.  Nor  give  an 
extension  of  time  upon  a  debt  due  to  his  client.  Lockhart  vs.  Wyatt,  10 
Ala.  231,  44  Am.  Dec.  481.  Nor  transfer  to  another  the  property  in  a  note 
committed  to  him  for  collection.  Nor  bind  his  client  by  an  agreement  to 
refund  money  overpaid.    Ireland  vs.  Todd,  36  Me.  149. 


Chap.  I]  MouLTON  vs.  Bowkee.  621 

Pierce  vs.  Strickland,  2  Story  292;  Levi  vs.  Alhott,  4  Exch.  588. 
The  act  of  the  demandauts'  attorney  was  therefore  within  his 
professional  authority,  and  bound  his  clients,  and  if  it  was  fraudu- 
lent, their  remedy  must  be  sought  against  him,  it  being  agreed 
that  the  other  party  was  not  cognizant  of  any  fraud. 

Judgment  on  the  verdict  for  the  tenant. 


(87  Pennsylvania  State,  243,  30  Am.  Rep.  357.) 

KIRK'S  APPEAL. 

(Supreme  Court  of  Pennsylvania,  May,  1878.) 

Appeal  from  decree  of  distribution  of  fund  arising  from  sheriff's 
sale  of  real  estate.     The  opinion  states  the  case. 

H.  M.  Baldridge,  for  appellant, 
Samuel  S.  Blair,  for  appellee. 

Meecue,  J.  This  contention  arises  on  the  distribution  of  a  fund 
produced  by  a  sheriff's  sale  of  real  estate.  The  rights  of  the  claim- 
ants depend  on  the  effect  to  be  ^iven  to  a  release  executed  by  E. 
Hammond,  of  the  lien  of  the  judgment  on  which  the  appellants 
claim  the  money.  The  judgment  was  recovered  by  McNeal.  In  the 
assignment  thereof,  which  he  made  to  Hammond,  he  declared  it  waa 
''  to  be  held  by  Hammond  as  collateral  security  for  the  payment 
of  the  claim  of  Boggs  &  Kirk,  for  which  claim  I  have  this  day 
given  to  the  said  Boggs  &  Kirk  three  promissory  notes."  This 
assignment  was  filed  of  record.  The  prothonotary  entered  on  the 
docket  the  substance  of  the  assignment,  and  added,  "  See  paper 
filed." 

Hammond  was  an  attorney  at  law.  As  attorney  for  Boggs  & 
Kirk  he  took  the  notes  of  McNeal  for  a  debt  due  them,  and  accepted 
the  assignment.  He  therefore  held  it  for  their  benefit.  The 
assignment  showed  this  fact.  As  between  him  and  them  he  had 
no  more  right  to  release  the  lien  of  the  judgment  on  lands  bound 
thereby,  than  he  had  to  give  up  the  notes  to  the  maker  without 
payment. 

In  conducting  a  suit,  an  attorney  at  law  has  large  powers.  After 
judgment  recovered,  he  may  execute  a  valid  receipt  on  its  payment. 
Yet  he  cannot  sell  and  assign  it  without  the  ratification  of  his  client 


623  Cases  on"  Agency.  [  Book  V 

CamphelVs  Appeal,  5  Casey  (Pa.)  401.  Nor  can  he  accept  land  in 
satisfaction  of  a  debt  of  his  client.  Huston  vs.  Mitchell,  14  S.  &  R. 
307,  16  Am.  Dec.  506;  Stachliouse  et  al.  vs.  O'Hara,  2  Harr. 
88;  Stockley  vs.  Robinson,  10  Casey,  315.  His  authority  is 
limited  to  the  discharge  of  that  profesional  action  which  lies  at 
the  foundation  of  the  relation  of  counsel  and  client.  He  has 
large  discretionary  power  as  to  the  manner  and  time  of  pros- 
ecuting his  client's  claim  to  judgment.  He  may  order  and 
direct  the  sheriff  in  regard  to  the  collection  of  the  execution. 
These  powers  are  given  to  him  to  protect  the  rights  and  advance 
the  interests  of  his  client.  He  has  no  right  to  release  property 
bound  by  his  client's  judgment.  This  appears  to  have  been 
conceded  by  the  learned  judge  if  the  record  had  showed  Ham- 
mond held  the  assignment  as  attorney  for  Boggs  &  Kirk.  It  is 
true  the  record  did  not  distinctly  show  that  fact;  yet  we  think  it 
showed  enough  to  have  put  the  appellee  on  inquiry,  and  if  so, 
inquiry  thereupon  become  a  duty. 

The  exercise  of  common  prudence  and  ordinary  diligence,  which 
he  was  bound  to  use,  would  have  disclosed  to  him  that  Hammond 
held  the  assignment  as  attorney  or  counsel  for  Boggs  &  Kirk. 
Lodge  vs.  Simonton,  2  P.  &  W.  (Pa.)  439,  23  Am.  Dec.  36;  Cresson 
vs.  Miller,  2  Watts,  (Pa.)  272;  Jaques  vs.  Weeks,  7  Id.  261;  Walsh  vs. 
Stille,  2  Pars.  17;  Hill  vs.  Epley,  7  Casey,  331.  The  release  itself  can- 
not be  found,  but  the  record  entry  recites,  "  For  value  received,  E. 
Hammond,  Esq.,  releases  from  the  lien  of  this  judgment  the  real 
estate  of  Peter  S.  McCormick,  but  does  not  satisfy  the  judgment 
or  any  part  thereof;  see  paper  filed."  Thus  the  record  not  only 
shows  the  assignment  to  be  for  the  benefit  of  Boggs  &  Kirk,  but 
also  that  Hammond  executed  the  release  without  any  payment  on 
the  judgment.  A  release,  by  one  who  held  the  legal  title  only, 
which  proclaimed  no  payment  on  the  judgment,  and  presumptively 
no  consideration  to  the  use  party,  should  have  put  the  appellee  on 
inquiry.  The  language  of  the  record  gave  sufficient  notice  of  an 
implied  breach  of  trust  to  make  inquiry  a  duty.  Failing  to  inquire, 
he  must  be  affected  by  the  facts  which  a  due  investigation  would 
have  disclosed.  Those  facts  show  Hammond  was  the  attorney  of 
Boggs  &  Kirk;  that  this  release  was  a  fraud  on  them;  that  it  was 
made  without  their  knowledge,  and  never  ratified  by  them.  The 
learned  judge  therefore  erred  in  holding  that  the  release,  thus 
executed,  discharged  the  lien. 

Decree  reversed,  and  record  remitted,  with  instructions  to  decree 


Chap.  I]  Kiek's  Appeal.  623 

distribntion  conformably  ■n'ith  this  opinion.     It  is  further  ordered 
that  the  appellee  pay  the  costs  of  this  appeal. 

Judgment  reversed. 


IV. 

tIABILITT   OF  ATTORNEY   FOR  MONET   COLLECTED.' 


(108  Indiana,  500,  58  Am.  Rep.  61.) 

NALTNER  vs.  DOLAN. 

(Supreme  Court  of  Indiana,  November,  1886.J 

Facts  are  stated  in  the  opinion. 

S.  Glaypool  &  W.  A.  Ketcham,  for  appellant, 

J.  R.  Courtney,  for  appellee. 

Mitchell,  J.  Naltner,  on  the  24:th  day  of  February,  1883,  com- 
menced proceedings  in  attachment  against  Dolan,  and  on  the  same 
day  caused  a  summons  in  garnishment  to  be  served  on  the 
appellants  herein.  On  the  7th  day  of  March  following,  upon  his 
intervening  petition,  Montague  was  admitted  as  a  party  to  the 
proceeding.  He  filed  a  cross  complaint,  in  which  he  alleged,  in 
substance,  that  the  fund  in  the  hands  of  the  appellants,  being  the 
subject  of  the  attachment  and  garnishee  proceeding,  had  been 
assigned  to  him  by  Dolan  for  a  valuable  consideration,  before  the 
proceedings  were  commenced.  He  prayed  judgment  for  the 
recovery  of  the  money. 

The  appellants,  with  the  general  denial,  answered  specially, 
admitting  the  possession  of  a  fund  which  they  averred  had  come 
to  their  hands  as  the  attorneys  of  Dolan.  They  alleged  that  they 
had  been  notified  by  Montague  of  his  claim  after  the  proceedings 
in  garnishment  had  been  commenced,  and  averred  their  readiness 
to  pay  the  money  to  whomsoever  the  court  should  adjudge  entitled 
thereto.  Other  answers  were  filed,  to  which  demurrers  were 
sustained. 

The  facts  were  found  specially  by  the  court,  and  are  presented  in 

'See  Cummins  vs.  Heald,  ante,  p.  247;  Exchange  Nat.  Bank  vs.  Tlurd 
National  Bank,  ante,  p.  239. 


624  Oases  on  Agenot.  [Book  V 

the  following  summary:  Dolan,  who  at  the  time  the  suit  was 
commenced  lived  in  Illinois,  owed  Naltner  1600  then  due.  The 
appellants,  as  attorneys,  had  in  their  hands  for  collection  a  claim 
in  favor  of  Dolan,  against  the  Indiana,  Bloomington  &  Western 
Eailway  Company,  which  Dolan,  on  the  13th  day  of  Septembe?, 

1882,  transferred  for  value  to  Montague.  On  February  24,  1883, 
the  day  on  which  the  attachment  suit  commenced,  appellants 
received  from  the  clerk  of  the  United  States  district  court,  for  the 
district  of  Indiana,  checks  for  something  over  $80,000  which  was 
in  payment  of  claims  against  the  Indiana,  Bloomington  &  Western 
Eailway  Company,  which  payment  was  made  to  them  in  behalf  of 
Dolan  and  many  others  of  their  clients.  Dolan's  claim  against  the 
railway  company  was  $600.  Upon  receiving  the  check  they 
deposited  it  with  the  Indiana  Banking  Company,  which  was  then 
in  good  standing,  the  deposit  being  to  the  credit  of  themselves  in 
their  firm  name.  The  money  thus  received  belonged  to  some 
hundreds  of  their  clients,  and  the  computation  of  interest,  and  the 
division  to  each  of  his  share  required  several  days'  continuous  work 
before  distribution  could  be  made. 

The  appellants  were  lawyers,  partners,  actively  engaged  in 
practice. 

They  had  an  account  at  the  bank  in  question  in  which  all  money 
collected  for,  and  belonging  to  their  various  clients  was  deposited 
and  checked  out  in  the  firm  name,  but  such  moneys  were  not 
mingled  with  their  own. 

Before  they  had  time  or  opportunity  to  pay  out  the  money  in 
controversy,  the  appellants  were  garnished  at  the  suit  of  Naltuer. 
They  received  notice  of  the  assignment  to  Montague,  February  28, 

1883,  four  days  after  the  suit  was  commenced.  Montague,  within 
a  few  months  after  giving  notice  of  his  claim,  and  while  the  proceed- 
ings in  garnishment  were  pending  made  demand  on  garnishee 
defendants  for  the  money  remaining  in  their  hands  which  was 
derived  from  the  Dolan  claim. 

On  the  9th  day  of  August,  1883,  the  Indiana  Banking  Company, 
having  until  that  time  continued  in  good  standing  and  credit, 
failed.  A  receiver  was  appointed  for  the  bank  August  13,  1883. 
The  appellants  brought  the  certiflcate  of  the  receiver  of  the  bank 
for  the  money  in  dispute  into  court,  and  offered  to  surrender  it  to 
the  person  entitled  as  the  court  should  direct.  The  amount 
remaining  in  their  hands  in  the  manner  above  stated,  was  $445.69. 

Conclusions  of  law  were  stated  favorable   to  a  recovery  by  Mon- 


Ohap.  I]  Naltnee  vs.  Dolan.  625 

tague  against  the  appellants  of  tlie  amount  thns  remaining  in  their 
hands. 

Do  the  facts  found  warrant  the  conclusion  of  law  stated? 

Money  belonging  to  a  client  having  been  received  by  the  attor- 
neys, in  payment  of  a  claim  left  with  them  for  collection,  the 
transmission  of  such  money  having  been  arrested  by  garnishee 
process  before  an  opportunity  for  transmitting  it  occurred, 
the  question  is,  having  acted  in  the  utmost  good  faith,  and  with- 
out any  suggestion  of  fault  or  neglect,  are  the  attorneys  responsible 
for  the  continued  solvency  of  the  bank  in  which  such  funds  were 
deposited  in  their  own  name,  but  not  with  their  own  funds,  not- 
withstanding the  bank  was  in  good  credit  when  the  deposit  was 
made? 

The  receipt  of  money  by  an  attorney,  under  the  circumstances 
disclosed  in  this  case,  does  not  i23so  facto  create  the  technical  rela- 
tion of  debtor  and  creditor  between  the  attorney  and  client.  It  is 
because  it  does  not  that  a  suit  cannot  be  maintained  by  the  latter 
against  the  former  without  first  making  a  demand.  Money  so 
collected  belongs  to  the  client.  The  attorney  occupies  toward  it 
the  relation  of  a  trustee,  so  long  as  he  chooses  to  treat  and  preserve 
the  fund  as  a  trust  fund.  The  circumstances  under  which  he  will 
be  liable  for  its  loss  are  precisely  those  which  govern  in  the  case  of 
any  other  trustee.  While  it  is  preserved  in  its  trust  character,  if 
he  exercises  the  same  caution  in  respect  to  depositing  it,  if  a 
deposit  becomes  necessary  or  proper,  as  a  prudent  man  would  in 
regard  to  his  own  money,  and  a  loss  happens,  he  will  be  excused. 
Norwood  vs.  Harness,  98  Ind.  134,  49  Am.  Eep.  739;  State,  exrel., 
vs.  Oreensdale,  106  Ind.  364,  55  Am.  Eep.  753. 

The  authorities,  however,  distinguish  between  cases  in  which  the 
deposit  was  made  in  such  a  manner  as  to  preserve  its  trust 
character  on  the  books  of  the  bank  in  which  the  fund  was 
deposited,  and  those  in  which  the  owner  of  the  fund  might  be  put 
to  the  trouble  of  proving  by  extraneous  evidence  that  the  fund  was 
not  the  individual  money  of  his  trustee.  Whenever  a  trustee, 
unless  properly  authorized  to  do  so,  puts  the  fund  in  such  shape  as 
to  invest  himself  with  a  legal  title  to  it,  the  cestui  que  trust  has  his 
election,  either  to  treat  the  fund  according  to  the  appearance  of 
things,  as  the  property  of  the  trustee,  and  regard  the  latter  as  his 
debtor,  or  he  may  demand  that  the  title  be  transferred  to  him.  If 
a  deposit  is  made  in  such  a  manner,  as  on  the  face  of  the  books  of 
40 


626  Oases  on  Agency.  [Book  V 

the  bank  in  which  the  deposit  is  made,  to  authorize  the  trustee, 
his  assignee,  or  legal  representative,  to  claim  it  as  the  fund  of  the 
depositor,  the  cestui  que  trust  has  the  option  to  do  likewise. 
Merhet  vs.  Smith,  33  Kans.  66;  McAllister  vs.  Commonwealth,  30 
Penn.  St.  536;  Morris  vs.  Wallace,  3  Penn.  St.  319,  45  Am.  Dec. 
642;  Jacl'son  v3.  Banl-,  etc.,  10  Penn.  St.  61;  School  District,  etc., 
vs.  First  Kafl  Bank,  102  Mass.  174;  Uiica  Ins.  Co.  vs.  Lynch,  11 
Paige,  520;  Bartlett  vs.  Hamilton,  46  Me.  435;  2  Pom.  Eq.  Jur. 
§§  1007-1076;  Perry  Trusts,  §§  443,  444;  Story  Agency,  §  208. 

In  case  it  becomes  the  duty  of  an  agent  or  trustee  to  deposit 
money  belonging  to  his  principal,  he  can  escape  the  risk  only  by 
making  the  deposit  in  his  principal's  name,  or  by  so  distinguishing 
it  on  the  books  of  the  bank,  as  to  indicate  in  some  way  that  it  is 
the  principal's  money.  If  he  deposit  in  his  own  name,  he  will  not, 
in  case  of  loss,  be  permitted  to  throw  such  loss  on  his  principal. 
Williams  vs.  Williams,  55  Wis.  300,  42  Am.  Piep.  708;  Norris  vs. 
Hero,  22  La.  An.  605;  Mason  vs.  Whitthorne,  2  Oold.(  Tenn.)  242; 
Jenkins  vs.  Walter,  8  G.  &  J.  (Md.)  218,  29  Am.  Dec.  539;  Rob- 
inson vs.  Ward,  2  0.  &  P.  60;  Macdonnell  vs.  Harding,  7  Sim. 
178;  State  vs.  Greensdale,  supra. 

In  such  a  case  the  good  faith  or  intention  of  the  trustee  is  in  no 
way  involved.  Having  for  his  personal  convenience,  or  from  what- 
ever motive,  deposited  the  money  in  his  own  name,  thereby  vesting 
himself  with  a  legal  title,  it  follows  as  a  necessary  consequence, 
when  a  loss  occurs,  he  will  not  be  permitted  to  say,  as  against  his 
cestui  que  trust  that  the  fact  is  not  as  he  voluntarily  made  it 
appear. 

What  the  legal  or  equitable  rights  of  the  real  owner  of  the  fund 
would  be  in  such  a  case,  as  against  the  bank  or  as  against  attach- 
ing creditors  of  the  depositor,  has  been  the  snbject  of  much  dis- 
cussion, and  of  some  diversity  of  opinion.  Pennell  vs.  Deffell,  4 
De  G.,  M.  &  G.  372;  Farmers'  etc..  Bank  vs.  King,  57  Penn.  St. 
202,  98  Am.  Dec.  215,  {ante,  p.  590);  School  District,  etc.,  vs.  First 
Nat'l  Bank,  102  Mass.  174;  Jackson  vs.  Bank,  sitpra;  Bundy  vs. 
Toivn  of  Monticello,  84  Ind.  119,  131,  and  cases  cited;  McLain  vs. 
Wallace,  103  Ind.  502;  McComas  vs.  Long,  85  Ind.  549;  Ellicoti 
vs.  Barnes,  31  Kans.  170,  173;  Morse  Banks,  300-302. 

Whatever  diversity  of  opinion  may  be  found  in  respect  to  the 
rights  of  the  bank,  or  other  creditors  of  the  depositor,  the  author- 
ities agree  that  a  trustee  who  either  invests  or  deposits  trust  money 


Chap,  I]  Naltner  vs.  Dolan.  627 

in  his  own  name,  without  in  some  way  designating  it  as  trust 
property,  will  be  responsible  for  any  loss  that  may  occur  to  the 
fund  while  so  invested  or  deposited.  Gilbert  vs.  Wehch,  75  Ind. 
557;  2  Lead.  Cas.  in  Eq.  1805. 

Having  put  the  owner  of  the  fund  to  the  hazard  of  losing  it,  or 
of  maintaining  its  trust  character  by  such  proof  aliunde  as  may  be 
available  to  him,  the  trustee  thereby  gives  the  former  the  privilege 
of  treating  the  latter  as  his  debtor,  or  of  supplying  the  proof,  or 
accepting  his  admission  of  the  facts,  at  his  option. 

Applying  the  principles  stated  to  the  facts  found,  the  con- 
clusion follows,  that  the  appellants  assumed  the  risk  that  the  bank, 
in  which  the  fund  was  deposited  in  their  name,  and  from  which  it 
could  only  have  been  drawn  by  their  check,  would  be  able  to 
respond  with  the  money  when  their  check  for  it  should  be  pre- 
sented. 

The  fact  that  none  but  money  belonging  to  clients  was  deposited 
in  the  account  in  which  the  fund  in  question  was  placed  does  not 
alter  the  case.  The  controlling  consideration  is,  that  it  was 
deposited  to  the  credit  of  the  firm,  without  anything  to  designate 
or  preserve  its  trust  character.  They  took  and  retained  the  legal 
title  to  the  deposit  in  themselves.  In  the  event  of  a  controversy, 
the  character  of  the  fund  would  have  depended  wholly  on  extrane- 
ous proof.  This  being  so,  the  owner  had  the  right  to  elect  to 
stand  upon  the  title  to  the  deposit,  as  he  found  it.  Having  so 
elected,  there  is  no  rule  of  law  which  authorizes  any  inquiry  into 
the  motives  for  so  taking  the  title,  short  of  an  express  or  implied 
direction  from  the  owner  of  the  fund. 

The  judgment  is  affirmed,  with  costs. 

Rehearing  denied.  Judgment  affirmed. 


628  Cases  on  Agekoy.  [Bouk  V 

V. 

DEALINGS  BETWEEN    ATTORNEY   AND  CLIENT. 


(98  New  Yoek,  25,  60  Am.  Eep.  632.) 

STOUT    vs.  SMITH. 
fNew  York  Court  of  Appeals,  January,  1885.) 

This  was  an  action  to  recover  damages  on  account  ol  fraud 
arising  out  of  various  transactions  in  the  exchanging  or  ^ale  of 
farms  between  defendant  and  Alfred  and  Andrew  Stout,  the  latter 
having  since  died.  The  opinion  states  the  facts..  Plainti^  had 
judgment  below. 

David  B.  Hill,  for  appellant. 

Rufus  King,  for  respondents. 

MiLLEB,  J.  (After  stating  the  facts.)  "We  think  there  was  no 
sufficient  evidence  that  the  relationship  of  attorney  and  client 
existed  between  the  defendant  and  the  Stouts.  Although  the 
defendant  was  an  attorney  at  law,  his  principal  business  was  that 
of  a  banker,  and  he  did  not  practice  law  to  any  great  extent,  only 
making  collections  for  his  bank,  and  occasionally  for  others.  There 
is  no  positive  evidence  that  he  was  employed  by  the  Stouts,  as  their 
attorney  in  these  transactions,  or  that  he  ever  received  any  pay 
for  his  services  as  such  attorney,  or  that  he  was  ever  employed  by 
them  in  any  litigation.  On  the  contrary,  it  is  proved  by  one  of  the 
Stouts  himself,  that  he  was  the  attorney  against  them  in  the 
foreclosure  of  a  mortgage. 

The  evidence,  which  it  is  claimed  shows  that  this  relationship 
existed,  is  within  a  narrow  compass,  as  will  be  seen  by  a  brief 
reference  to  the  same.  Alfred  Stout,  after  stating  that  defendant 
had  never  been  employed  by  him  as  an  attorney  up  to  the  time  of 
the  transactions  in  question,  testified  that  the  defendant  did  all 
the  writing  between  them  and  stated  that  it  would  not  cost  the 
Stouts  anything,  and  that  they  need  not  carry  the  papers  to 
anybody  else  to  show  them,  because  they  were  right;  that  he 
claimed  to  be  a  lawyer,  which  fact  the  witness  knew,  and  said  that 
he  would  not  wrong  them  out  of  a  cent.  Lydia  Stout,  the  widow 
of  Andrew,  deceased,  who  was  present  at  the  time  mentioned  by 


Chap.  I]  Stout  vs.  Smith.  629 

Alfred,  states  that  she  heard  no  more  about  his  being  a  lawyer  than 
that  he  claimed  that  he  was  when  he  wanted  to  draw  up  the  papers; 
that  he  was  a  lawyer  and  his  writing  should  not  cost  him  anything; 
that  he  was  a  lawyer  and  could  do  the  business. 

This  evidence,  taken  together,  does  not  establish  that  the  rela- 
tionship of  attorney  and  client  existed  between  the  parties.  The 
fact  that  the  defendant  was  an  attorney,  and  that  he  was  willing 
to  do  all  the  writing  without  compensation,  is  not  enough  to  show 
the  existence  of  such  a  relationship.  The  papers  which  were 
drawn  were  in  proper  form,  and  no  legal  advice  was  required  in 
regard  to  the  same.  No  advice  was  offered  or  obtained,  and  the 
defendant  never  received  a  retainer  or  agreed  to  act  as  an  attorney 
for  the  Stouts. 

It  nowhere  appears  that  he  assumed  the  obligations  of  a  pro- 
fessional man  in  these  transactions,  or  that  the  Stouts  regarded 
him  as  acting  in  that  capacity.  He  was  merely  engaged  as  an 
individual  in  making  a  bargain  for  the  sale  or  exchange  of  real 
estate,  and  evidently  drew  up  the  papers  gratuitously,  without 
assuming  to  act  as  attorney  for  the  Stouts.  The  defendant,  as  an 
individual,  had  a  perfect  right  to  make  a  bargain  with  the  Stouts 
as  he  did,  and  draw  up  the  papers  without  charge,  and  he  did  not 
thereby  necessarily  place  himself  in  the  position  of  the  attorney  or 
adviser  of  those  with  whom  the  bargain  was  entered  into.  If  he, 
in  these  transactions,  gained  any  advantage,  it  did  not  arise  from 
the  relationship  of  attorney  and  client,  but  from  the  fact  that  he 
was  dealing  with  persons  of  less  capacity  than  himself  to  make  a 
bargain  or  transact  business.  He  may  have  been  chargeable  with 
deceit  and  fraud,  and  therefore  liable  if  they  were  proved  against 
him,  but  under  the  circumstances  there  seems  to  be  no  valid  ground 
for  the  contention  that  he  was  liable  for  a  violation  of  his  duty  in 
a  professional  capacity.  As  the  case  stood,  there  was  not  suf- 
ficient evidence  to  establish  the  fact  that  the  relationship  of  attor- 
ney and  client  existed  between  the  defendant  and  the  Stouts,  and 
that  question  was  improperly  submitted  to  the  consideration  of  the 
jury. 

We  are  also  of  the  opinion  that  the  court  erred  in  submitting 
the  question  of  undue  influence  to  the  jury.  As  the  relationship  of 
attorney  and  client  did  not  exist  between  defendant  and  the  Stouts, 
it  is  diflicult  to  see  upon  what  ground  it  can  be  claimed  that  undue 
influence  was  exercised  over  them  in  the  transactions  between 
the    parties.      Undue    influence    is    generally     understood     to 


630  Cases  oif  Agency.  [Book  V 

constitute  the  power  whicli  one  party  •wrongfully  exercises  over 
another  in  attempting  to  control  the  judgment  and  influence  the 
action  of  such  other  person  for  the  benefit  of  himself.  The  evi- 
dence in  this  case  does  not  show  any  such  confidential  relationship 
or  intimacy  between  the  parties  as  would  authorize  the  conclusion 
that  the  defendant  improperly  influenced  the  Stouts  in  the  transac- 
tions he  had  with  them.  Nor  is  it  apparent  from  the  position  he 
occupied  that  the  defendant  possessed  the  power  to  induce  the. 
Stouts  to  act  against  their  own  interest,  or  that  any  such  control 
was  exercised  by  him.  Alfred  and  Andrew  were  possessed  of  ordin- 
ary intelligence,  could  read  and  write,  and  had  an  opportunity  to 
examine,  or  to  have  examined  the  papers  which  passed  between 
them  and  the  defendant,  and  there  is  no  evidence  in  the  case  which 
tends  to  establish  that  in  the  various  transactions  between  the 
parties  they  were  induced  by  the  defendant,  by  means  of  undue  in- 
fluence, to  act  in  opposition  to  what  they  supposed  was  for  their 
own  benefit. 

The  fact  that  the  defendant  was  engaged  in  a  business  from 
which  it  may  be  inferred  that  he  was  better  qualified  to  make  bar- 
gains and  to  obtain  advantages  by  reason  of  his  capacity,  shrewdness 
and  superior  ability,  does  not  of  itself  lead  to  the  conclusion  that 
any  advantage  was  obtained  by  means  of  undue  influence.  He  may 
have  deceived  and  he  may  have  defrauded  the  Stouts  in  his  deal- 
ings with  them,  but  it  cannot,  we  think,  be  maintained  that  he 
did  so  through  any  improper  influence  employed  for  that  purpose. 
A  person  of  great  intelligence,  experience  and  adroitness  in  busi- 
ness affairs  will  naturally  have  an  advantage  over  one  more  ignorant 
and  less  qualified  to  engage  in  such  matters,  and  the  superior  mind 
must  necessarily  exercise  more  or  less  control  over  the  inferior,  but 
this  is  not  undue  influence.  If  a  man  deals  dishonestly,  and  is  charge- 
able with  fraud  and  deceit  in  his  transactions,  he  is  liable  to  answer 
on  that  account.  Such  conduct,  however,  in  the  absence  of  any 
definite  and  established  relation  of  confidence,  does  not  furnish  any 
valid  legal  ground  for  setting  aside  a  contract  in  an  action  for  the 
recovery  of  damages  by  reason  of  undue  and  improper  influence 
exercised  over  the  party  with  whom  he  has  been  dealing. 

The  evidence  given  upon  the  trial  mainly  bore  upon  the  question 
of  fraud,  and  deceit  practiced  by  the  defendant  upon  the  Stouts, 
and  as  the  facts  developed  did  not  establish  undue  influence,  they 
do  not  require  an  elaborate  examination.  It  is  sufficient  to  say 
that   in  view  of  the  evidence,  a  case  involving  the  principle  of 


Chap.  I  ]  Stout  vs.  Smith.  631 

undue  influence  does  not  arise,  nor  was  it  proper  to  present  any 
such  question  to  the  consideration  of  the  jury. 

Several  questions  as  to  the  admissibility  of  evidence  were  raised 
upon  the  trial,  but  inasmuch  as  a  new  trial  must  be  granted  for 
the  reasons  already  stated,  it  is  not  necessary  to  consider  them. 

The  judgment  should  be  reversed  and  a  new  trial  granted,  with 
costs  to  abide  the  event. 

Judgment  reversed. 

All  concur,  Edqer,  0.  J.,  and  Earl,  J.,  on  the  first  ground. 


VI. 

attorney's  compeksation. 


(93  United  States,  548.) 

STANTON    vs.     EMBREY. 

^United  States  Supreme  Court,  October,  1876. J 

Action  by  Embrey,  as  administrator  of  one  Atkinson,  deceased, 
an  attorney,  to  recover  for  services  rendered  by  Atkinson  in  prose- 
cuting for  defendants  a  claim  against  the  government.  Atkinson 
recovered  a  judgment  but  died  before  its  payment.  The  services 
were  rendered  upon  a  contract  for  a  contingent  compensation,  but 
the  amount  was  not  fixed.     Judgment  below  for  the  plaintiii. 

T.  J.  Durant,  for  plaintiffs  in  error. 
Edward  Lander,  contra. 

Clifford,  J.  (After  disposing  of  a  question  of  practice.)  Com- 
ing to  the  merits,  the  first  objection  of  the  plaintiffs  in  error  is 
that  the  contract  set  up  in  the  declaration  is  one  for  a  contingent 
compensation.  Such  a  defense,  in  some  jurisdictions,  would  be  a 
good  one;  but  the  settled  rule  of  law  in  this  court  is  the  other  way. 
Reported  cases  to  that  effect  show  that  the  proposition  is  one 
beyond  legitimate  controversy.  Wylie  vs.  toxe,  15  How.  (U.  S.) 
415;   Wright  vs.  TebbUts,  91  U.  S.  252. 

Professional  services  were  rendered  by  an  attorney  in  the  first 
case  cited,  in  prosecuting  a  claim  against  the  Republic  of  Mexico, 
under  a  contract  that  the  attorney  was  to  receive  five  per  cent  of 


632  Cases  on  Agency.  [  Book  V 

the  amount  recovered.  Valuable  services  were  rendered  by  the 
attorney  during  the  lifetime  of  the  claimant,  but  he  died  before 
the  claim  was  allowed.  Subsequently  the  efforts  of  the  attorney 
were  successful,  and  he  demanded  the  fulfillment  of  the  contract, 
which  was  refused  by  the  administrator  of  the  decedent.  Payment 
being  refused,  the  attorney  brought  suit;  and  this  court  held  that 
the  decease  of  the  owner  of  the  claim  did  not  dissolve  the  contract, 
that  the  claim  remained  a  lien  upon  the  money  when  recovered, 
and  that  a  court  of  equity  would  exercise  jurisdiction  to  enforce 
the  lien,  if  it  appeared  that  equity  could  give  him  a  more  adequate 
remedy  than  he  could  obtain  in  a  court  of  law.  Courts  of  law 
also  adopt  the  same  rule  of  decision,  as  sufficiently  appears  from 
the  second  case  cited,  where  the  same  rule  of  decision  was  applied 
and  enforced  without  hesitation  or  qualification.  Contracts  for 
lobbying  stand  upon  a  very  different  footing,  as  was  clearly  shown 
by  the  chief  justice  in  commenting  upon  a  prior  decision,  in  which 
the  opinion  was  given  by  Justice  Swayne.  Trist  vs.  Child,  21 
Wall.  (U.  S.)  450. 

Nothing  need  be  added  to  what  is  exhibited  in  the  case  last  men- 
tioned to  point  out  the  distinction  between  professional  services  of 
a  legitimate  character,  and  a  contract  for  an  employment  to 
improperly  influence  public  agents  in  the  performance  of  their 
public  duties.  Tool  Co.  vs.  ]Sorris,2^Q\\.  (U.  S.)  53.  Profes- 
sional services  to  prepare  and  advocate  just  claims  for  compensation, 
are  as  legitimate  as  services  rendered  in  court  in  arguing  a  cause  to 
convince  a  court  or  jury  that  the  claim  j^resented  or  the  defense  set 
up  against  a  claim  presented  by  the  other  party  ought  to  be 
allowed  or  rejected.  Parties  in  such  cases  require  advocates;  and 
the  legal  profession  must  have  a  right  to  accept  such  employment, 
and  to  receive  compensation  for  their  services;  nor  can  courts  of 
justice  adjudge  such  contracts  illegal,  if  they  are  free  from  any 
taint  of  fraud,  misrepresentation,  or  unfairness.  By  the  contract 
in  question,  the  amount  of  compensation  to  be  paid  was  not  fixed; 
and  in  order  to  enable  the  jury  to  determine  what  the  plaintiff  was 
equitably  entitled  to  recover,  he  called  other  attorneys,  and  proved 
what  is  ordinarily  charged  in  such  cases;  and  the  defendants  excepted 
to  the  ruling  of  the  court,  in  refusing  to  charge  the  jury  that  they 
should  disregard  such  testimony. 

Attorneys  and  solicitors  are  entitled  to  have  allowed  to  them  for 
their  professional  services,  what  they  reasonably  deserve  to  have  for 
the  same,  having  due  reference  to  the  nature  of  the  service  and 


Chap.  I]  Stanton  vs.  Embeey.  633 

their  own  standing  in  the  profession  for  learning,  skill,  and  pro- 
ficiency; and,  for  the  purpose  of  aiding  the  jury  in  determining  that 
matter,  it  is  proper  to  receive  evidence  as  to  the  price  usually 
charged  and  received  for  similar  services  by  other  persons  of  the 
same  profession  practicing  in  the  same  court.  Vilas  vs.  Downer, 
21  Vt.  419.         *        *         *  Affirmed. 

Note.— Compare  with  Vilas  vs.  Dotcner,  21  Yt.  419,  Egghston  vs.  Board- 
man,  37  Mich.  14;  Brvce  vs.  Dickey,  116  lU.  527.  See,  also,  Mills  vs.  Mills, 
ante,  p.  17;  Elkhart  County  Lodge  vs.  Crary,  ante,  p.  18. 


VII. 
Attorney's  Lien. 


(112  New  York,  157.) 

GOODEicH  vs.  McDonald. 

("New  York  Court  of  Appeals,  January,  1889.) 

Plaintiff's  intestate,  who  was  an  attorney,  had  been  attorney  for 
Mrs.  Graves,  a  daughter  of  Mrs.  McDonald,  the  defendant.  He 
had  prosecuted  a  case  for  her  successfully  in  the  United  States 
Circuit  Court,  from  which  an  appeal  was  taken  to  the  United 
States  Supreme  Court.  Pending  the  appeal,  the  attorney  died, 
and  another  was  employed  to  argue  the  case  in  the  Supreme  Court, 
where  the  judgment  was  affirmed.  When  the  judgment  was  to  be 
paid,  plaintiff  was  notified,  but  he  wrote  that  he  was  willing  that 
Mrs.  Graves  should  receive  the  money  and  he  would  look  to  her 
for  the  pay  for  intestate's  services,  and  the  money  was  paid  to  her. 
She  failed  to  pay,  and  he  obtained  judgment  against  her.  Plaint- 
iff then  sought  to  reach  a  mortgage  transferred  to  Mrs.  McDonald 
by  Mrs.  Graves,  on  the  ground  that  the  mortgage  was  purchased 
with  the  proceeds  of  the  judgment  on  which  his  intestate  had  had 
a  lien.     He  succeeded  in  the  court  below. 

Motthew  Hale,  for  appellant. 

H.  V.  Howland,  for  respondent. 

Earl,  J.     The  judgment  in  the  action  brought  by  Mrs.  Graves 
against  Porter  and  others  was  perfected  on  the  26th  day  of  June, 


634  Cases  on  Agency.  [Book  V 

1877,  about  two  years  before  the  amendment  of  section  66  of  tbe 
Code  of  Civil  Procedure  enlarging  the  scope  of  that  section,  so 
that  now  an  attorney  who  appears  for  a  party  has  a  lien  upon  his 
client's  cause  of  action,  which  attaches  "  to  a  verdict,  report, 
decision  or  judgment  in  his  client's  favor  and  the  proceeds  thereof, 
in  whosoever's  hands  they  may  come.''  The  section  as  amended 
was  prospective  only  in  its  operation  and  can  have  no  effect  upon  a 
judgment  previously  recovered;  and  so  it  was  held  by  the  trial 
judge.  Therefore,  in  the  examination  of  the  case,  it  is  not  neces- 
sary to  take  further  notice  of  the  section;  nor  is  it  necessary  to 
give  any  attention  to  the  adjudication  in  the  former  action  by  the 
plaintiff  against  Mrs.  Graves,  as  that  action  was  commenced  after 
the  assignment  of  the  bond  and  mortgage  to  Mrs.  McDonald,  and 
she  was  not  a  party  thereto,  and,  therefore,  not  bound  by  the 
adjudication  therein. 

Attorneys  have  two  kinds  of  liens  peculiar  to  them  in  their 
relations  with  their  clients.  One  is  a  lien  which  an  attorney  has 
upon  all  the  papers  of  his  client  in  his  possession,  by  virtue  of 
which  he  may  retain  all  such  papers  until  his  claim  for  services  has 
been  discharged.  That  in  the  books  is  called  a  retaining  lien.  An 
attorney  also  has  a  lien  upon  the  fund,  or  judgment  which  he  has 
recovered  for  his  compensation  as  attorney  in  recovering  the  fund 
or  judgment,  and  that  is  denominated  a  charging  lien.  Stokes 
on  Liens  of  Attorneys,  5,  85;  In  re  Wilson,  2  McCarty  Civ.  Pro. 
151.  It  is  the  latter  kind  of  lien  with  which  we  are  concerned  in 
this  case. 

The  practice  of  enforcing  such  liens  is  not  very  ancient.  Baron 
Parke  in  Barlcer  vs.  St.  Quintin,  12  Mees.  &  Wels.  441,  stated 
that  the  doctrine  of  an  attorney's  lien  on  a  judgment  was  first 
established  in  the  case  of  Welsh  vs.  Uole,  1  Doug.  238,  where  Lord 
Manspield  said:  **  An  attorney  has  a  lien  on  the  money  recovered 
by  his  client  for  his  bill  of  costs.  If  the  money  come  to  his  hands 
he  may  retain  to  the  amount  of  his  bill.  He  may  stoj)  it  in 
transitu  if  he  can  lay  hold  of  it.  If  he  apply  to  the  court  they 
will  prevent  its  being  paid  over  till  his  demand  is  satisfied.  I 
am  inclined  to  go  still  further,  and  to  hold  that,  if  the  attorney 
gave  notice  to  the  defendant  not  to  pay  till  his  bill  should  be 
discharged,  a  payment  by  the  defendant  after  such  notice  would 
be  in  his  own  wrong,  and  like  paying  a  debt  which  has  been 
assigned  after  notice.  But  I  think  we  cannot  go  beyond  these 
limits."     That  great  jurist  in    Wilkins  vs.   Carmichael,  1  Dong. 


Chap.  I]  Goodrich  vs.  McDonald.  635 

104,  speaking  of  an  attorney'-B  lien  also  said:  **  It  was  established 
on  general  principles  of  jnstice,  and  that  courts,  both  of  law  and 
equity,  have  now  carried  it  so  far  that  an  attorney  or  solicitor  may 
obtain  an  order  to  stop  his  client  from  receiving  money  recovered 
in  a  suit  in  which  he  had  been  employed  for  him  until  his  bill  is 
paid." 

The  lien  as  thus  established,  is  not  strictly  like  any  other  lien 
known  to  the  law,  because  it  may  exist  although  the  attorney  has 
not  and  cannot,  in  any  proper  sense,  have  possession  of  the  judg- 
ment recovered.  It  is  a  peculiar  lien,  to  be  enforced  by  peculiar 
methods.  It  was  a  device  invented  by  the  courts  for  the  protec- 
tion of  attorneys  against  the  knavery  of  their  clients,  by  disabling 
clients  from  receiving  the  fruits  of  recoveries  without  paying  for 
the  valuable  services  by  which  the  recoveries  were  obtained.  The 
lien  was  never  enforced  like  other  liens.  If  the  fund  recovered 
was  in  possession  or  under  the  control  of  the  court,  it  would  not 
allow  the  client  to  obtain  it  until  he  had  paid  his  attorney,  and  in 
administering  the  fund  it  would  see  that  the  attorney  was  pro- 
tected. If  the  thing  recovered  was  in  a  judgment,  and  notice  of 
the  attorney's  claim  had  been  given,  the  court  would  not  allow  the 
judgment  to  be  paid  to  the  prejudice  of  the  attorney. 

If  paid  after  such  notice  in  disregard  of  his  rights,  the  court  would, 
upon  motion,  set  aside  a  discharge  of  the  judgment  and  allow  the 
attorney  to  enforce  the  judgment  by  its  process  so  far  as  was  need- 
ful for  his  protection.  But  after  a  very  careful  search  we  have 
been  unable  to  find  any  case  where  an  attorney  has  been  permitted 
to  enforce  his  lien  upon  a  judgment  for  his  services  by  an  equitable 
action,  or  where  he  has  been  permitted  to  follow  the  proceeds  of  a 
judgment  after  payment  of  them  to  his  client.  His  lien  is  upon  the 
judgment,  and  the  courts  will  enforce  that  through  the  control  it  has 
of  the  judgment  and  its  own  records,  and  by  means  of  its  own  process 
which  may  be  employed  to  enforce  the  judgment.  But  after  the 
money  recovered  has  been  paid  to  his  client  he  has  no  lien  upon  that, 
and  much  less  a  lien  upon  property  purchased  with  that  money  and 
transferred  to  another.  After  such  payment,  unless  he  has  pro- 
tected his  lien  by  notice  to  the  judgment-debtor,  his  lien  is  forever 
gone,  and  he  must  look  to  his  client  alone  for  his  compensation. 

As  said  by  Lord  ELLENBOEOUGn  in  Wilson  vs.  Kyiner,  1  Maule 
&  Sel.  157,  and  repeated  by  Senator  Verplanck  in  McFarland  vs. 
Wheeler,  26  Wend.  467,  **  in  a  case  of  a  lien  we  should  be  anxious  to 
tread  cautiously  and  on  sure  grounds  before  we  extend  it  beyond 


636  Oases  on  Agency.  [Book  V 

the  limits  of  decided  cases."  There  are  not  only  no  decided  cases 
which  sanction  the  maintainance  of  this  action,  but  the  drift  of  all 
the  authorities  is  against  the  plaintifli^s  contention. 

In  Cooper  vs.  Jenkins,  33  Beavan,  431,  the  master  of  the  rolls 
eaid:  "  I  have  always  understood  the  law  to  be  that  a  solicitor  had 
an  inherent  equity  to  have  his  costs  paid  out  of  any  fund  recovered 
by  his  exertions;  and  that  the  court  would  not  part  with  it  until 
these  costs  had  been  paid,  except  by  consent  of  the  solicitor."  In 
Mercer  vs.  Graves,  7  Q.  B.,  L.  R.  499,  Lord  Chief  Justice  Cock- 
burn  said:  '*A1  though  we  talk  of  an  attorney  having  a  lien  upon 
a  judgment,  it  is  in  fact  only  a  claim  or  right  to  ask  for  the  inter- 
vention of  the  court  for  his  protection,  when,  having  obtained 
judgment  for  his  client,  he  finds  there  is  a  probability  of  the  client 
depriving  him  of  his  costs." 

In  Barker  vs.  St.  Quintin,  sujyra.  Baron  Parke  said:  "The 
lien  which  an  attorney  is  said  to  have  on  a  judgment,  which  is, 
perhaps,  an  incorrect  expression,  is  merely  a  claim  to  the  equitable 
interference  of  the  court  to  have  that  judgment  held  as  a  security 
for  his  debt."  In  Braden  vs.  Ward,  42  N.  J.  L.  518,  it  was  held 
that  the  right  of  lien  for  an  attorney's  costs  exists  only  where  he 
has  received  money  upon  the  judgment  in  the  cause,  or  has  arrested 
it  in  transitu,  or  where  the  defendant  has  paid  the  judgment  after 
receiving  notice  of  the  attorney's  claim.  Reed,  J.,  writing  the 
opinion  in  that  case,  said:  **  There  is  no  instance  in  the  practice 
of  the  English  courts  where  the  right  of  lien  for  costs  has  been 
enforced,  except  where  the  attorney  has  possession  of  the  money 
received  upon  the  judgment,  or  has  arrested  it  in  transitu,  or 
else  the  defendant  has  received  notice  of  the  claim  of  the  plaintiff's 
attorney  before  settling  the  judgment." 

In  Cowen  vs.  Boone,  48  Iowa.  350,  it  was  held  that  an  attorney's 
lien  upon  a  judgment  is  waived  by  his  procuring  a  transfer  to  his 
client  of  land  attached  in  the  suit  in  satisfaction  of  the  judgment. 
There  the  client  having  received  the  transfer  of  the  land  conveyed 
it  to  a  third  person  and  took  back  a  mortgage  for  the  purchase 
money.  She  then  assigned  the  mortgage,  and  the  attorneys,  being 
defendants  in  a  suit  to  foreclose  it,  asserted  their  lien;  and  it  was 
held  that  their  lien  was  upon  the  judgment  and  did  not  follow  the 
land  when  the  title  was  perfected  in  the  client.  In  Whittle  vs. 
Hewrnan,  34  Ga.  377,  it  was  held  that  after  the  litigation  was 
ended  and  the  client  had  possessed  himself  of  the  entire  fund 
recovered  by  the  litigation,  the  court  had  no  power  to  give  relief  to 


Chap.  I]  GooDEicH  vs.  McDonald.  G37 

the  attorney.  In  Horton  vs.  Cltamplin,  12  R.  I.  550,  34  Am.  Rep. 
722,  it  was  held  that  an  attorney's  lien  originates  in  the  control 
which  the  attorney  has  in  his  retainer  over  the  judgment,  and 
the  process  for  its  enforcement,  thus  enabling  him  to  collect 
the  judgment  and   reimburse  himself  out  of  the  proceeds. 

These  authorities  are  all  in  harmony  with  the  cases  which  have 
been  decided  in  this  state  {St.  Johns  vs.  Diefendorf,  12  Wend. 
261;  Marshall  vs.  Meech,  51  N.  Y.  140,  10  Am.  Rep.  572;  In  the 
Matter  of  Knapp,  85  Id.  284);  and  from  them  it  appears  to  be 
clear  that  when  by  acquiescence  of  the  attorney  the  money  recov- 
ered has  been  paid  to  his  client,  or  his  client  has  received  property 
in  satisfaction  of  the  judgment,  he  cannot  enforce  his  lien  against 
Buch  money  or  property,   but  must  look  to  his  client  alone  for 
his  compensation.     Therefore,  when  this  money,  with  the  plaint- 
iff's consent,  was  paid  to  Mrs.  Graves,  without  any  agreement  that 
his  lien  should  be  transferred  to  the  fund  thus  paid,  or  should 
follow  it  any  further,  the  lien  was  lost,  and  his  only  remedy  then 
was  against  her.     Before  the  judgment  was  paid,  the  court,  upon 
his  application,  would  have  protected  his  lien  by  compelling  pay- 
ment to  him,  or  authorizing  him  to  enforce  the  judgment  for  his 
own  benefit,  so  far  as  it  was  necessary  to  secure  his  compensation. 
If  the  defendants  had  paid  the  judgment  without  notice  of  the 
attorney's  lien,  they  would  have  been  protected  and  the  attorney 
could  not  have  enforced  his  lien  upon  the    moneys   paid.       If, 
however,  they  had  paid  after  receiving  notice  of  the  lien,  or  in 
fraud  of  the  rights  of  the  plaintiff,  the  court  would  have  can- 
celled any   satisfaction  of    the  judgment  and    allov.ed    him    to 
enforce  it  for  his  own  benefit. 

Therefore,  in  no  aspect  of  this  case  was  the  plaintiff  in  a  position 
to  enforce  any  lien  upon  this  mortgage  for  the  amount  of  compen- 
sation due  for  the  legal  services  of  his  intestate.  But  we  need  not 
stop  here.  If  the  plaintiff  could  otherwise  have  had  an  enforcable 
lien  against  the  funds  in  Mrs.  Graves'  hands,  or  against  the  mort- 
gage in  the  possession  of  Mrs.  McDonald,  the  lien  was  lost  by  his 
consent  that  the  money  should  be  paid  to  Mrs.  Graves.  He  not 
only  consented  that  the  money  should  be  paid  to  her,  but  that  he 
would  look  to  her  alone  for  the  amount  coming  to  him.  This 
certainly  was  a  distinct  and  emphatic  waiver  of  any  lien  he  had. 
He  did  not  reserve  any  lien  upon  the  fund,  or  any  right  to  proceed 
against  it.  "We  do  not  think  that  it  is  a  reasonable  construction  of 
the  letters  written  by  him  to  Mr.  Kernan  and  Mrs.  Graves  that  he 


638  Cases  on  Agency.  [Book  V 

intended  the  fund  slionld  he  paid  to  her  subject  to  his  lien,  or  that 
he  intended  in  any  way  to  preserve  his  lien. 

After  payment  with  his  consent,  his  lien  was  effectnally 
destroyed  as  the  Hen  of  a  mechanic  is  who  delivers  to  the  general 
owner  an  article  npon  which  he  has  performed  labor  without  any 
agreement  that  his  lien  shall  be  preserved. 

The  confidence  of  the  plaintiff  in  the  client  appears  to  have  been 
misplaced  and  abused.  His  claim  is  a  very  meritorious  one,  and  we 
have  been  anxious  to  find  some  way  to  circumvent  the  efforts, 
apparently  without  justification,  to  defeat  it.  But  we  have  been 
unable  to  find  any,  and  reluctantly  reach  the  conclusion  that  the 
judgment  should  be  reversed  and  a  new  trial  granted. 

All  concur.  Judgment  reversed. 


(12  Federal  Reportee,  235.) 
IN  RE  WILSON   &   GEEIG,   BANKRUPTS. 

^United  States  District  Court,  Southern  District  of  New  Yorh^ 
June,    1882. J 

Petition  for  payment  of  attorney's  fees  for  which  he  claimed  a 
lien.  He  had,  as  attorney,  recovered  two  judgments  for  his  clients 
against  one  "Wilson  which  remained  entirely  uncollected.  He  after- 
wards recovered  another  judgment  against  Hine,  Phillips  and 
others.  His  clients  having  become  bankrupts,  their  assignees 
employed  other  attorneys  who,  by  supplementary  proceedings, 
collected  these  judgments.  Petitioner  claimed  a  lien  upon  them 
and  their  proceeds  and  sought  to  have  the  assignee  pay  him  for  his 
services  in  the  Hine-Philiips  case  out  of  the  proceeds  of  the  judg- 
ment against  Wilson. 

S.  B.  Hamlurger,  for  claimant. 
Blumenstiel  &  Hirsch,  for  assignee. 

Brown,  D.  J.  (After  stating  the  facts.)  After  examination  of 
the  numerous  authorities  on  this  subject,  English  and  American, 
I  am  satisfied  that  the  claim  of  the  petitioner  cannot  be  sustained, 
and  that  an  attorney  has  no  general  lien  upon  an  uncollected  judg- 
ment for  services  in  other  suits  but  only  a  particular  lien  for  big 
costs  and  compensation  in  that  particular  cause. 


Ohap.  I]  In  EB  "Wilson  &  Geeiq.  63y 

An  attorney's  lien,  as  now  generally  recognized,  is  of  two  kinds. 
First,  a  general  lien  resting  wholly  npon  possession,  wliich  is  a 
mere  right  to  retain,  until  his  whole  bill  is  paid,  all  papers,  deeds, 
vouchers,  etc.,  in  his  possession  upon  which,  or  in  connection  with 
which,  he  has  expended  money  or  given  his  professional  services. 
This  "  retaining  lien  "  is  a  general  one  for  whatever  may  be  due 
to  him;  and,  though  a  client  may  change  his  attorney  at  will,  if 
the  latter  be  without  fault  and  willing  to  proceed  in  pending 
causes,  none  of  the  papers  or  vouchers  can  ordinarily  be  withdrawn 
from  him  except  upon  payment  of  his  entire  bill  for  professional 
services.  In  re  Paschal,  10  Wall.  483,  493-6;  In  re  Brown,  1  N. 
Y.  Leg.  Obs.  69;  In  re  Broomhead,  5  Dowl.  &  L.  52;  Blunden  vs. 
Desart,  2  Dru.  &  Warr.  423;  jE'a;  parte  NesUtt,  2  Sch.  &  Lef.  279; 
Ex  parte  Sterling,  16  Ves.  258;  Griffiths  vs.  Griffiths,  2  Hare,  592; 
Ex  parte  Pemherton,  18  Ves.  282;  Lord  vs.  Wormleighton,  1  Jacob, 
580;  Bozon  vs.  Bolland,  4  Myl.  &  C.  354,  356;  Ex  parte  Yalde?i, 
L.  E.  4  Ch.  Div.  129;  Colmer  vs.  Ede,  40  Law  J.  (N.  S.)  Chanc. 
185;  Bough  vs.  Edivards,  1  Hurl.  &  N.  171;  Cross,  Lien,  216; 
Stokes,  Attys'  Liens,  28,  38;  2  Kent,  *641.  This  lien,  like  other 
mere  possessory  liens,  is,  however,  purely  passive,  being  a  bare 
right  to  hold  possession  till  payment. 

The  articles  cannot  be  sold  or  parted  with  without  loss  of  the 
lien,  nor  can  any  active  proceedings  be  taken  at  law  or  in  equity 
to  procure  payment  of  the  debt  out  of  the  articles  so  held.  Cross, 
Lien,  47,  48;  Thames  Iron  Works  vs.  Patent  Derrick  Company,  1 
Johns.  &  H.  93;  The  B.  F.  Woolsey,  4  Fed.  Eep.  552,  558.  The 
Btatute  of  this  State,  passed  May  8,  1869  (Laws  1869,  c.  738), 
which  was  designed  to  afford  means  of  realizing  payment  upon 
Buch  mere  possessory  liens,  applies  only  to  liens  "  upon  any  chattel 
property."  Mere  choses  in  action,  such  as  the  notes  or  demands 
placed  in  the  petitioner's  hands  for  collection,  are  not  "  chattel 
property"  (2  Bl.  *387;  Ingalls  vs.  Lord,  1  Cow.  240;  Ransom  vs. 
Miner,  3  Sandf.  692),  and  therefore  not  within  the  statute.  As 
this  general  lien  of  the  attorney  upon  the  notes  and  demands  in 
suit  depended  wholly  upon  possession,  and  was  a  mere  right  of 
retention,  incapable  of  any  active  proceedings  to  enforce  payment, 
it  could  not  be  transferred,  nor  attach  to  the  judgments  obtained 
upon  them  or  to  any  proceeds  thereof,  unless  such  proceeds  came 
into  the  attorney's  possession,  which  is  not  the  fact  in  this  case. 

The  second  kind  of  lien  which  an  attorney  has  is  that  existing 
npon  a  judgment  recovered  by  him,  or  moneys  payable  thereon,  or 


640  Oases  ok  Agency.  [Book  V 

upon  some  fund  in  court.  Tliis  lien,  so  far  as  it  extends,  is  not 
merely  a  passive  lien,  but  entitles  the  attorney  to  take  active  steps 
to  secure  payment.     It  did  not  exist  at  common  law. 

It  is  stated  by  Lord  Mansfield  to  be  not  very  ancient.  1  Doug. 
104;  Stokes,  3.  It  does  not  depend  upon  possession,  but  upon  the 
favor  of  the  court  in  protecting  attorneys,  as  its  own  officers,  by 
taking  care,  ex  aequo  et  bono,  that  a  "  party  should  not  run  away 
with  the  fruits  of  the  cause  without  satisfying  the  legal  demands 
of  the  attorney  by  whose  industry  and  expense  those  fruits  were 
obtained.''  Read  vs.  Dupper,  6  T.  R.  361.  As  this  equitable  right 
rests  solely  upon  the  compensation  due  to  the  attorney  for  his  ser- 
vices, and  money  expended  in  procuring  the  judgment  or  the  fund 
secured,  it  is  manifest  that  it  cannot  upon  principle  be  extended 
beyond  the  services  and  expenses  in  the  suit  itself,  or  in  any  other 
proceedings  by  which  the  judgment  or  fund  has  been  recovered,  or 
in  the  same  subject-matter. 

The  distinction  between  an  attorney's  "retaining  lien"  upon  papers 
in  his  possession,  and  his  ''charging  lien"  upon  a  judgment  or  other 
fund,  is  carefully  pointed  out  by  the  lord  chancellor  in  Bozon  vs. 
Bolland,  4  Myl.  &  C.  354,  359.  "  The  solicitor's  claim  upon  the 
fund,"  he  says,  "  has  been  called  transferring  the  lien  from  the 
document  to  the  fund  recovered  by  its  production.  But  there  is  no 
transfer;  for  the  lien  upon  the  deed  remains  as  before,  though  perhaps 
of  no  value;  and,  whereas,  the  lien  upon  the  deed  could  never 
have  been  activelyenf orced,  the  lien  upon  the  fund,  if  established, 
would  give  a  title  to  payment  out  of  it.  The  active  lien  upon  the 
fund,  if  it  exists  at  all,  is  newly  created,  and  the  passive  lien  upon 
the  deed  continues  as  before.  If  the  doctrine  contended  for  were 
to  prevail,  the  lien  of  the  solicitor  upon  the  fund  realized  would 
in  most  cases  extend  to  his  general  professional  demand,  and  not 
be  confined,  as  it  always  is,  to  the  costs  in  the  cause,  for  it  must 
very  generally  happen  that  the  plaintiff's  solicitor  has  in  his  hands 
the  documents  necessary  to  establish  his  client's  title  to  the  money." 

In  Lann  vs.  Church,  4  Madd.  207,  the  vice-chancellor  said  that 
he  "  had  not  been  able  to  find  any  case  in  which  it  had  been  held 
that  a  solicitor  had  any  lien  on  the  fund  recovered  in  the  cause, 
except  for  his  costs  incurred  in  such  cause." 

Such  is  the  well-established  English  practice.  Stevens  vs.  Wes- 
ton, 3  B.  &  0.  538;  HodgJcinson  vs.  KcUy,  1  Hcgan,  388;  Hall  vs. 
Laver,  1  Hare,  571,  577;  Perkins  vs.  Bradley,  Id.  219,  231;  Lucas 
vs.  Peacock,  9  Beav.  177;  Stokes,  Attys.'  Liens,  138.      The  same 


Chap.  I]  In  BE  WiLcoN  &  Geeiq.  C41 

principle  has  been  repeatedly  affirmed  in  this  country  where  the 
English  practice  of  recognizing  a  lien  upon  a  judgment  has  been 
followed. 

In  rhillipps  vs.  Stagg,  2  Edw.  Ch.  108,  the  vice-chancellor  saya 
that  "  the  attorney's  lien  is  not  to  extend  beyond  the  costs  in  this 
action.  lie  cannot  claim  the  amount  of  other  costs  due  to  him  in 
other  suits  at  law." 

In  Adams  vs.  Fox,  40  Barb.  442,  448,  MoncAN,  J.,  says:  "This 
lien  is  totally  different  from  the  lien  upon  the  papers.  The  lien  on 
the  Judgment  is  confined  to  the  costs  of  the  particular  suit,  and 
the  attorney  can  actively  enforce  it.  The  lien  on  the  papers  is  merely 
a  right  to  retain  them,  and  applies  to  all  his  bills  of  costs." 

In  St.  Jolin  vs.  Diefendorf,  12  "Wend.  201,  the  precise  question 
presented  in  this  case  was  decided  adversely  to  the  attorney's  lien. 
Having  recovered  a  judgment,  the  plaintiff's  attorneys  there  gave 
notice  to  the  defendant  to  pay  the  damages,  as  well  as  the  costs,  to 
them,  on  the  ground  that  they  had  a  demand  against  their  client 
for  costs  in  other  suits  to  an  amount  equal  to  the  damages.  The 
court  say:  "  The  question  is  whether  the  attorney  has  a  lien  upon 
his  client's  money  before  it  comes  into  his  hands  to  satisfy  the 
demand  he  has  against  his  client  for  costs  in  other  suits.  *  *  ♦ 
An  attorney  has  a  lien  upon  his  client's  papers,  but  he  has  no  lien 
upon  anything  which  belongs  to  his  client  until  it  is  in  his  posses- 
sion. The  costs  belong  to  the  attorney.  There  can  be  no  lien 
upon  what  belongs  to  another  without  possession."  Pope  vs. 
Arnutrong,  3  Smedes  &  M.  214;  Cage  vs.  Wilkinson,  Id.  223;  The 
Hectograph  Co.  vs.  Four!,  11  Fed.  Rep.  844. 

The  petitioner  contends  that  by  the  law  of  this  state,  as  estab- 
lished by  the  court  of  appeals  in  the  case  of  the  Bowliyig  Green 
Savings  Bank  vs.  Todd,  52  N.  Y.  489,  affirming  64  Barb.  14G,  the 
lien  of  an  attorney  for  his  general  balance,  which  exists  upon  all 
papers  and  vouchers  in  his  possession,  is  extended  equally  to  any 
judgments  recovered  or  moneys  collectable  upon  them.  In  that 
case  a  receiver  of  the  plaintiff  was  appointed  after  a  decree  for  the 
foreclosure  of  a  mortgage  had  been  obtained,  but  before  the  sale  of 
the  premises.  The  receiver  employed  Cullen  &  McGowan,  the 
previous  attorneys  of  the  plaintiff,  to  proceed  in  the  cause,  and 
they  afterwards  caused  the  mortgaged  premises  lo  be  sold  and 
received  tiie  proceeds,  from  which  they  claimed  to  deduct  not  only 
their  bill  in  that  action,  but  also  a  bill  for  professional  services  due 
41 


642  Cases  on  Agency.  [Book  V 

to  them  from  the  plaintiff  in  other  matters  preceding  the  appoint- 
ment of  the  receiver,  and  also  a  third  bill  due  in  McGowan 
individually  for  still  prior  services. 

At  special  term  both  the  last  named  bills  were  disallowed.  The 
general  term,  on  appeal,  allowed  the  prior  bill  of  the  firm,  but 
disallowed  the  individual  claim  of  McGowan;  and  this  was  affirmed 
by  the  court  of  appeals.  The  court  last  named  say:  ''  The  attor- 
neys of  the  bank  had  a  lien  upon  the  papers  in  the  foreclosure,  not 
only  for  the  costs  and  charges  in  that  suit,  but  for  any  general 
balance  in  other  professional  business,'^  referring  to  3  T.  R.  275; 
8  East,  362.  Neither  of  those  cases,  however,  sustain  the  doctrine 
of  a  general  lien  upon  a  judgment  beyond  the  costs  in  the  par- 
ticular cause. 

In  the  court  below,  Ingraham,  J.,  says  (64  Barb.  135):  '"Most 
of  the  cases  in  which  this  lien  [upon  the  judgment]  is  recognized 
are  cases  where  the  claim  was  for  costs  of  that  particular  action  in 
which  the  motion  was  made.  But  the  rule  is  equally  well  settled 
as  to  any  claim  which  the  attorney  has  for  his  services,  and 
attaches  as  well  to  the  proceeds  of  a  judgment  as  to  the  papers  on 
which  the  judgment  was  founded.-"  No  authorities  are  cited  for 
this  last  proposition,  nor  after  much  search  have  I  been  able  to 
discover  any  in  this  country  or  in  England.  We  have  seen  that, 
60  far  as  respects  a  general  lien  upon  a  judgment,  or  fund  in  court, 
the  authorities  are  all  to  the  contrary.  Where  an  attorney  has 
collected  money  for  his  client,  and  no  rights  of  third  persons  have 
intervened,  through  assignment,  death,  or  bankruptcy,  he  might, 
doubtless,  offset  his  own  general  bill.  Patrick  vs.  Hazen,  10  Vt. 
184. 

In  the  case  of  the  Bowling  Green  Savings  Banh,  however,  the 
appointment  of  a  receiver  before  the  collection  of  the  moneys  pre- 
vented any  legal  right  of  set  off.  The  moneys  were  collected  by 
the  attorneys  upon  the  employment  of,  and  as  the  attorneys  of, 
the  receiver,  as  in  the  case  of  Scliiuartz  vs.  Schioartz,  21  Hun,  33, 
the  moneys  were  collected  upon  the  employment  and  as  the  attor- 
neys of  the  assignee.  In  neither  of  these  cases  does  the  distinction 
seem  to  be  noted  which  has  been  so  long  established  between  a  mere 
**  retaining  lien  "  upon  the  papers  in  the  possession  of  an  attorney, 
which  is  geueral  but  purely  passive,  and  his  "charging  lien"  upon 
a  judgment  or  fund  recovered,  which  is  limited  to  services  in  the 
cause,  but  capable  of  being  actively  enforced. 


Cljap.  I]  In  EB  Wilson  &  Geeiq,  643 

Numerous  prior  decisions  of  the  court  of  appeals  have  declared, 
like  the  English  cases,  that  an  attorney's  lien  upon  a  judgment  is 
based  upon  the  equitable  consideration  that  it  is  by  the  attorney's 
labor  and  skill  that  the  judgment  has  been  recovered;  the  judg- 
ment being  within  the  control  of  the  court,  and  the  parties  within 
its  jurisdiction,  the  court  will  see  that  no  injustice  is  done  to  its 
own  officers. 

In  Rooney  vs.  Second  Avenue  R.  Co.,  18  N.  Y.  373;  in  Ely  vs. 
Cooke,  28  N.  Y.  373;  in  DunJcin  vs.  Vaiulenherg,  1  Paige,  62G,  and 
in  many  other  cases,  the  attorney  has  upon  this  ground  been 
regarded  as  an  equitable  assignee  of  the  judgment  to  the  extent 
of  his  demands  in  the  cause.  Prior  to  the  adoption  of  the  Code  of 
Procedure  the  extent  of  this  lien  was  limited  to  the  taxable  costs. 
The  Code  has  made  no  other  change  than  to  extend  the  lien  to  any 
agreed  or  deserved  compensation.  Marshall  vs.  Meech,  51  N.  Y. 
140,  143;  Haight  vs.  Holcomh,  7  Abb.  Pr.  210;  Aclcerman  vs.  AcJc- 
erman,  14  Abb.  Pr.  229. 

Hareis,  J.,  in  the  case  of  Rooney,  above  cited,  says  that  the 
attorney  is  now  *'  to  be  regarded  as  the  equitable  assignee  of  the 
judgment  to  the  extent  of  his  claim  for  services  m  the  actioit."  In 
the  same  case,  Comstock,  J.,  says:  "The  attorney  is  entitled  to 
a  lien,  as  against  his  client,  because  his  labor  and  skill  contributed 
to  the  judgment,*'  *  ♦  *  ^nd  he  "  has  an  interest  in  the 
judgment  either  to  the  amount  of  those,  or  for  some  other  amount 
which  he  is  entitled  to  claim  (by  agreement  or  on  the  quantum 
meruit)  as  the  measure  of  his  compensation." 

In  Marshall  vs.  Meech,  51  N.  Y.  143, 10  Am.  Kep.  572,  thecourt  say 
that  the  "  attorney  has  a  lien  for  his  costs  and  compensation  upon  the 
judgment  recovered  by  him.  Such  a  lien  existed  before  the  Code, 
and  is  not  affected  by  any  provision  of  the  Code.  The  lien  exists,  not 
only  to  the  extent  of  the  costs  entered  in  the  judgment,  but  for 
any  sum  which  the  client  agreed  his  attorney  should  have  as  a 
compensation  for  his  services.  To  the  amount  of  such  lien  the 
attorney  is  to  be  deemed  an  equitable  assignee  of  the  judgment." 

In  Wright  vs.  Wright,  70  N.  Y.  100,  the  court  say:  *-The 
attorney  had  a  lien  for  the  amount  of  his  costs  and  agreed  com.pen- 
sation  upon  the  judgment,  and  to  that  extent  may  be  regarded  as 
an  equitable  assignee  of  the  judgment."  See,  also.  Ward  vs.  iiyine, 
9  How.  Pr.  16. 

Neither  in  the  decisions  nor  in  the  principles  announced  in  any 
prior  cases  do  I  find  any  warrant  for  holding  that  an  attorney  has 


644  Cases  on  Agency.  [Book  V 

any  lien  npon  an  uncollected  judgment  beyond  his  compensation 
in  the  particular  cause. 

In  the  case  of  Wolfe  vs.  Lewis,  19  How.  (U.  S.)  280,  a  case  very 
closely  analogous  to  that  of  the  Bowling  Green  Sarings  Banh,  the 
attorney  had  obtained  a  judgment  of  foreclosure,  but  the  money 
due  was  paid  into  court  without  sale.  Upon  the  attorney's  claim  of 
a  general  lien  for  other  services,  and  an  order  for  payment  thereof 
out  of  the  fund  by  the  court  below,  the  supreme  court  reversed  the 
order  and  directed  the  fund  to  be  paid  to  the  complainants. 

In  a  recent  case  {In  re  Enapp,  85  N.  Y.  284)  Danforth,  J., 
says:  "  The  lien  of  the  attorney  upon  a  judgment  recovered  by 
him  is  upheld  upon  the  theory  that  his  services  and  skill  procnred 
it,"  (71  N.  Y.  443);  thus  reaffirming  the  only  ground  upon  which 
this  lien  has  ever  been  put,  and  which,  while  it  explains  the  reason 
for  the  lien,  also  necessarily  limits  it  to  the  services  and  charges  in 
the  same  action.  In  the  case  last  cited  the  same  eminent  justice 
adds:  **  No  new  rule  was  enunciated  in  Boioling  Green  Savigs 
Banlc  vs.  Todd,  52  N.  Y.  489,  where  it  was  said  that  the  lien  of  the 
attorney  attaches  to  the  money  recovered  or  collected  upon  the 
judgment.'' 

As  the  prior  rule  was  undoubtedly  that  the  lien  upon  the  judg- 
ment did  not  extend  beyond  the  costs  and  compensation  in  the 
cause,  or  in  the  same  subject-matter,  and  as  no  new  rule  was 
intended  to  be  enunciated  in  the  case  of  the  Boioling  Green  Savings 
Bank,  it  must  be  understood  that  the  court  of  appeals  did  not 
intend  in  that  case  to  overrule  so  many  express  adjudications  that 
where  the  moneys  have  not  been  reduced  to  the  attorney's  actual 
possession,  his  lien  upon  the  judgment  does  not  extend  beyond  the 
amount  of  compensation  due  to  him  in  the  particular  cause,  or  in 
the  same  subject-matter.  In  re  Paschal,  10  Wall.  496;  The 
General  Share  T.  Co.  vs.  Chapman,  L.  K.  1  C.  P.  Div.  771. 

In  the  present  case  the  petitioner  never  came  into  possession  of 
the  moneys  claimed;  they  were  procnred  by  the  services  of  the 
other  attorneys,  by  legal  proceedings  subsequent  to  the  date  of  the 
petitioner's  claim.  These  subsequent  services  were  necessary  to 
realize  anything  upon  the  judgment,  and  the  subsequent  attorneys 
have  their  own  lien  uiton  the  judgment  and  its  proceeds  for  tlieir 
subsequent  services  in  the  cause;  and,  upon  the  doctrine  contended 
for  by  the  petitioner,  they  might  have  a  conflicting  lien  for  their 
own  general  balance,  to  the  full  amount  collected,  if  their  bill 
amounted  to  so  much.     Were  the  doctrine  to  be  recognized  that 


Chap.  I  ]  In  EE  Wilson  &  Geeig.  646 

attorneys  have  a  general  lien  for  all  their  professional  Bervicesupon 
each  and  every  uncollected  judgment  which  they  might  have 
obtained  in  behalf  of  a  client,  through  an  indefinite  period,  very 
great  confusion  and  inconvenience  would  be  the  necessary  result. 
The  petitioner's  general  bill,  in  this  case,  exceeded  each  of  the  judg- 
ments against  James  Wilson.  If  one  of  them  only  had  been  col- 
lected by  the  subsequent  attorneys,  the  prior  equitable  assignment 
to  the  petitioner,  upon  the  doctrine  contended  for,  would  either 
have  entitled  him  to  the  entire  proceeds,  to  the  exclusion  of  the 
subsequent  attorneys  who  might  have  had  greater  equitable  claims 
for  their  services  in  obtaining  the  money  upon  the  judgment,  or 
else  would  compel  a  further  judicial  hearing  and  determination,  as 
between  the  former  and  subsequent  attorneys,  as  to  the  apportion- 
ment of  the  proceeds  between  them. 

The  bill  of  services  which  the  petitioner  now  seeks  to  charge 
upon  the  two  earlier  judgments  is,  moreover,  a  bill  for  obtaining 
judgments  against  Hine  and  Phillips  some  four  months  afterwards. 
How  much,  if  any,  of  this  bill  existed  in  January,  1879,  when  the 
judgments  against  W  ilson  were  recovered,  does  not  appear;  and, 
by  the  rule  that  formerly  existed,  the  attorney  had  no  lien,  except 
upon  papers  in  his  hands  until  judgment,  or,  at  least,  till  a  verdict. 
Sweet  vs.  BartleU,  4  Sandf.  661;  McCahe  vs.  Fogg,  60  How.  Pr. 
488.  This  latter  bill,  as  it  now  stands,  could  not,  therefore,  have 
been  a  lien  upon  the  prior  Wilson  judgments  when  they  were 
entered;  and  if  not  a  lien  then,  how  could  it  become  so  afterwards? 
Neither  principle  nor  authority  can  sanction  an  increase  in  the 
amount  of  a  lien  upon  an  uncollected  judgment  through  subsequent 
services  in  independent  matters.  Section  66  of  the  new  Code  of 
Procedure,  1879,  which  gives  an  attorney  "  a  lien  upon  his  client^s 
cause  of  action "  from  its  commencement,  refers,  I  think,  to  his 
services  and  charges  in  the  cause  itself,  and  no  more,  and  does  not 
affect  the  questions  here  considered. 

The  petitioner's  claim  to  a  lien  upon  the  judgments  against 
Wilson  must  therefore  be  disallowed. 

Upon  the  pending  suits,  transferred  by  the  petitioner  under  the 
agreement,  the  assignee  has  collected  $144.57.  The  petitioner  had 
a  lien  upon  these  suits  and  on  the  papers  therein  for  his  general 
bill,  which  the  agreement  has  preserved.  Those  papers  were 
essential  to  the  further  prosecution  of  these  suits,  and  to  the 
recovery  of  the  moneys  afterwards  collected  therein.  Upon  the 
authorities  above  cited  {In  re  Paschal,  10  Wall.  483;  In  re  Broom- 


646  Cases  on  Agency.  [Book  V 

head,  5  Dowl.  &  L.  52,  etc.,  sujira)  the  court  -wotild  not  have 
ordered  those  papers  to  be  transferred  by  the  petitioner  except 
upon  payment  of  his  general  bill,  or  some  security  analogous  to 
that  of  the  agreement  made.  Carver's  Case,  7  Nott.  &  H.  499; 
Eeslop  vs.  Metcalfe,  3  Myl.  &  C.  183;  Cane  vs.  Martin,  2  Beav. 
684;  The  EeJctograph  Co.  vs.  Fourl,  11  Fed.  Eep.  844.  By  that 
agreement  this  lien  must  be  paid  "  out  of  the  first  moneys  collected 
from  those  suits.*'  I  find  a  balance  of  $74.55  collected  upon  these 
suits  not  applied  to  the  petitioner's  benefit,  and  he  is,  therefore, 
entitled  to  that  amount. 

The  substitution  of  attorneys  upon  the  Wilson  executions,  and 
the  surrender  of  the  notes  upon  which  those  judgments  were 
founded,  were  not  necessary,  and  were  of  no  value  in  the  subsequent 
collection  of  those  judgments;  they  were  not  even  clearly  embraced 
in  the  terms  of  the  agreement  between  the  parties,  and,  as  they 
were  of  no  beneficial  use,  the  surrender  of  them  cannot  now  serve 
as  a  basis  for  any  claim  to  a  general  lien  upon  the  Wilson  judgments 
which  did  not  iirevionsly  exist. 

In  Hodgins  vs.  Kelly,  1  Hogan,  388,  the  court  say:  "The 
general  lien  exists  as  to  the  papers  and  deeds  in  his  (the  attorney's) 
hands,  but  cannot  be  extended  to  the  funds  in  the  cause  if  the 
plaintiff  can  obtain  payment  without  his  assistance  or  the  use  of 
those  papers." 

The  petitioner  may  have  an  order  for  the  payment  of  $74.55, 
and  his  disbursments  in  this  proceeding. 

Note. — In  Massachusetts  &  Southern  Construction  Co.  v.  Toumship 
of  Gill's  Creek,  et  at.,  48  Fed.  Rep.  145,  Mr.  Hart,  the  petitioner,  a^sserted 
a  claim  of  service  of  $5,000  for  services  in  six  certain  cases  In  the  courts 
of  South  Carolina,  and  $1,000  for  services  to  be  rendered  in  a  pending  case 
in  the  United  States  court,  and  sought  to  subject  to  his  lien  certain  bonds 
known  as  the  Gill's  Creek  bonds  which  were  involved  in  the  latter  case, 
and  which  had  been  assigned  to  one  J.  H.  Albin  who  had  also  been  of 
counsil  in  the  cases. 

Said  the  court,  Simonton,  J:  "There  can  be  no  doubt  that  from  an 
early  period  courts  have  always  interfered  in  securing  to  attorneys  the 
fruit  of  their  labors,  even  as  against  their  own  clients.  Ex  parte  Bush,  7 
Vin,  Abr.  74.     This  is  an  equitable  interference  on  the  part  of  the  court, 

{Barker  vs.  St.  ijuiittin,  12  'Mvcs.  &  W.  441), the  enforcement  of  a  cl;iim 

or  right  on  the  jiart  of  the  attorney  to  asic  the  intervention  of  the  court  for 
his  own  prot<'ction,  when  he  finds  that  there  is  a  probability  that  his  client 
may  deprive  hiin  of  his  costs,  {Mercer  vs.  Graves,  L.  R.  7  Q.  B.  499).  See 
in  full.  In  re  Knapp,  85  N.  Y.  285.  For  the  want  of  a  better  word,  it  is 
called  a  "  lien,"  but  this  so-called  "  lien  "  is  limited  to  the  funds  collected  in 
the  ijarticular  case  in  which  the  services  were  reudtred.     In  re  Wilson,  12 


Chap.  I]  In  RE  Wilson  &  Giieiq.  647 

Fed.  Eep.  235.  This  is  the  rule  followed  by  all  courts,  without  requiring 
the  sanction  of  a  statute.  In  England  until  the  statute  of  18  Victoria  the 
lien  of  an  attorney  was  confined  to  the  taxed  costs  and  his  disbursements. 
In  South  Carolina  there  is  no  provision  by  statute  on  the  subject,  and  that 
rule  of  the  English  court  is  followed  strictly.  Scharlock  vs.  Oland,  1 
Rich.  Law,  207;  Miller  vs.  Newell,  20  S.  C.  123,  128.  The  courts  of  the 
United  States  seem  to  protect  attorneys  in  their  fees  as  well  as  in  their 
taxed  costs.  In  Wylie  vs.  Coxe,  15  How.  415,  the  court  protected  an  attor- 
ney by  securing  him  the  percentage  contracted  to  be  paid  him  on  recovery. 
In  Cowdrey  vs.  Railroad  Co.,  93  U.  S.  354,  an  attorney  was  secured  the 
fee  he  had  expressly  contracted  for.  So,  also,  in  McPherson  vs.  Cox,  96 
U.  S.  404.  These  were  express  contracts.  As  this  protection  to  the  attor- 
ney is  founded  upon  the  idea  "  of  a  contract  implied  by  law,"  and  as  effectual 
as  if  it  had  resulted  from  an  express  agreement,  {Ex  parte  Bush,  supva; 
Cowell  vs.  Simjjson,  16  Ves.  279)  and  as  the  statutes  of  the  United  States 
expressly  recognize  the  right  of  attorneys  to  charge  their  clients  reasonable 
compensation  for  their  services,  in  addition  to  taxable  costs,  (Rev.  St.  U.  S. 
§  823)  it  would  seem  that  the  United  States  courts  will  also  protect  the 
implied  contract. 

The  petitioner's  claim  is  upon  a  fund  arising  under  a  judgment  in  this 
court  for  services  rendered  in  the  State  courts  and  in  this  court — a  right 
arising  under  contract.  Cowell  vs.  Simpson,  supra.  As  the  law  of  South 
Carolina  confines  such  a  lien  to  costs  and  disbursements,  it  is  clear  that  the 
covmsel  fee  could  not  have  entered  into  the  contract  of  service  in  the  State 
court,  even  if  the  recovery  were  had  there.  This  protection  of  attorneys, 
in  the  absence  of  a  statute,  is  given  by  each  court  to  its  own  officers.  This 
court  would  not — i^erhaps  I  should  say  could  not — extend  the  protection  to 
Bervices  rendered  in  another  wholly  distinct  jurisdiction.  There  is  another 
consideration.  There  were  eight  separate  suits  and  seven  separate  recov- 
eries. All  the  bonds  recovered  in  six  suits  have  been  removed  from  the  con- 
trol of  the  court.  It  is  true  that  there  was  one  question,  common  to  all  of 
the  suits;  but  they  were  argued  together  simply  for  the  sake  of  convenience. 

If,  as  we  have  seen,  the  protection  is  given  to  an  attorney  as  against  a 
particular  fund,  for  his  services  in  the  suit  gaining  that  fund,  and  that 
only,  how  can  we  fix  on  the  Gill's  Creek  bonds  the  claim  for  services  rend- 
ered to  the  other  bonds  ?  This  would  be  a  general  lien.  See  Jones,  Liens, 
§  194,  and  cases  quoted.  How  can  we  tell  what  part  of  the  $5,000  is  to  be 
allotted  to  the  Gill's  Creek  bonds  ?  Of  course,  as  the  protection  is  for  ser- 
vices rendered,  there  can  be  no  lien  for  $1,000,  a  prospective  charge  for 
services  to  be  rendered.  But  the  assignment  to  J.  H.  Albin  disposes  of  the 
matter.  He,  with  the  petitioner  and  Messrs.  Lord  &  Hyde,  were  all 
engaged  on  the  same  side  in  the  same  case.  If  the  petitioner  has  a  right  far 
the  protection  of  the  court,  so,  equally,  has  each  one  of  them,  and  in  eaci* 
of  them  the  right  is  equitable.  Barker  vs.  St.  Quintin,  supra.  But  with 
this  equity  Mr.  Albin  has,  so  to  speak,  the  legal  title.  When  the  equities 
are  equal,  the  law  will  prevail.  He  cannot  be  disturbed  in  his  right  of 
possession.    *    »    »    Petition  dismissed." 

In  Dicas  vs.  Stockley,  7  Carr.  &  P.  587,  it  is  held  that  the  town  agent  of 
an  attorney  has  a  lien  upon  the  money  received  in  the  particular  cause,  and 
upon  the  papers  in  the  particular  cause,  for  the  amount  due  him  by  the 


648  Cases  Oif  Agexct.  [Book  V 

attorney  for  the  agency  bill  in  that  particular  cause  only,  and  he  has  this 
lien  against  all  the  world.  If  he  has  had  no  payment  made  to  him  specifi- 
cally  on  account  of  this  cause,  lie  is  eutitltd  to  this  lien  until  his  agency 
bill  in  the  particular  cause  is  satit-fied.  If  the  agent  has  parted  with  the 
possession  of  the  papers  by  his  own  act,  though  by  mistake,  his  lien  is  at  an 
end;  but  if  the  papers  were  unlawfully  taken  out  of  his  possession,  his  lien 
continues,  aud  he  may  bring  ti-over  for  them. 


(73  Michigan,  256.) 

WEEKS  vs.   WAYNE  CIRCUIT  JUDGES. 

(Supreme  Court  of  Michigan,  January,  18S9.J 

Relators  apply  for  a  mandamus  requiring  respondents  to  vacate 
an  order  discharging  a  suit  and  setting  aside  the  judgment  taken 
therein.     The  facts  are  stated  in  the  opinion. 

Edwin  F.  Conely,  for  relators. 
C.  P.  Blade,  for  respondents. 

Per  Curiam.  The  relators  were  attorneys  for  George  W.  Ayres, 
who  obtained  a  judgment  of  $2,500  against  the  Detroit  Free  Press 
Company  in  an  action  for  libel  which  they  prosecuted  for  Ayres  in 
the  Wayne  circuit  court. 

Ayres  was  poor  and  when  he  commenced  his  suit  and  retained 
his  attorneys  he  made  an  agreement  with  them  by  which  they  were 
to  be  paid  a  reasonable  compensation  for  their  services  and  dis- 
bursements made  in  prosecuting  the  suit  from  the  proceeds  of  the 
judgment  which  should  be  obtained,  and  it  is  stated  in  the  affidavits 
of  the  relators  that  this  arrangement  was  known  to  the  defendant, 
and  which  is  not  denied  in  any  aflidavit  on  the  part  of  defendant 
accompanying  the  return  of  respondents. 

It  is  further  sliown  that  the  defendant  in  the  libel  suit,  without 
the  knowledge  of  the  attorneys  for  either  party,  and  without  the 
consent  of  relators,  or  they  having  received  their  pay  for  their  ser- 
vices and  disbursements  in  said  suit,  settled  said  suit  with  the 
plaintiff,  and  obtained  his  receipt  in  full  for  said  judgment,  and 
upon  settlement  took  the  order  of  the  court  setting  aaido  said  judg- 
ment, and  dismissing  the  plaintiff's  case. 

Relators  now  move  for  a  mandamus  reiiuiring  respondents  to 
vacate  said  order  discharging  said  suit  and  that  the  order  setting 


Chap.  I J        Weeks  vs.  "Wayne  Ciecuit  Judges.  649 

aside  said  Judgment  be  modified  in  such  manner  as  to  secure  the 
rights  and  interests  of  relators  therein  under  their  said  agreement 
with  the  plaintiff  in  said  suit. 

Held,  that  the  relators  are  entitled  to  have  the  relief  they  ask 
against  the  action  taken  by  the  circuit  judge  in  the  premises,  and 
that  the  order  entered  should  be  modified  as  prayed  in  the  petition; 
that  the  arrangement  made  by  relators  with  Ayres  to  be  reimbursed 
for  moneys  advanced  by  them,  and  for  pay  for  their  services  in 
prosecuting  the  suit,  from  the  proceeds  of  the  judgment  which 
should  be  obtained  in  the  case,  operated  as  an  assignment  of  the 
judgment  to  relators  to  the  extent  of  those  claims,  and  until  they 
had  received  their  pay  the  plaintiU  could  give  no  valid  discharge  of 
the  judgment.  Kinney  vs.  Tabor,  62  Mich.  617;  Potter  vs.  Hunt, 
68  Id.  242;  Wells  vs.  Elsam,  40  Id.  218;  Andrews  vs.  Morse,  12 
Conn.  444,  31  Amer.  Dec.  752  and  notes;  Weeks,  Attjs.  §  309; 
Hutc]iin!<on  vs.  Howard,  15  Yt.  544. 

That  it  is  true  courts  as  a  rule  look  with  favor  upon  a  compromise 
and  settlement  made  by  the  parties  to  a  suit  with  the  consent  of 
all  persons  concerned,  to  prevent  the  vexation  and  expense  of 
further  litigation;  but  the  rule  only  applies  where  the  rights  and 
interests  of  all  the  parties  concerned,  both  legal  and  equitable,  have 
all  been  respected,  and  in  good  faith  observed.  Parties  cannot 
assume  that  attorneys  have  no  rights,  without  inquiry. 

The  present  does  not  disclose  such  a  case,  and  the  writ  prayed 
for  must  be  granted. 


65U 


Cases  on  Agexcy.  [Book  V 


CHAPTER    II. 

OF    AUCTIONEERS. 


I. 

auctioneer's    P0WBR3. 

(28  New  York,  261,  84  Am.  Deo.  343.) 

BUSH  vs.  COLE. 

(Xew  Yorh  Court  of  Appeals,  September,  IS6S.J 

Action  against  auctioneers  for  damages  for  failure  to  obtain  title 
to  a  house  and  lot  iu  the  city  of  Brooklyn,  which  defendants,  as 
auctioneers,  sold  to  him  at  public  auction.  The  sum  which  the 
plaintiff  bid,  and  en  which  the  premises  were  knocked  down  to  him, 
it  is  claimed  by  defendants  was  a  less  sum  than  that  for  which  they 
were  authorized  to  sell  the  premises.  The  remaining  facts  appear 
in  the  opinion. 

James  L.  Campbell,  for  the  appellants, 

John  H.  Reynolds,  for  the  respondent. 

By  Court,  Balcom,  J.  Whether  the  verdict  of  the  jury  waa 
against  evidence,  is  not  within  the  province  of  this  court  to 
determine.  We  must  therefore  assume  the  truth  of  the  case  to  be 
as  the  jury  have  found,  namely,  that  the  defendants  were  not 
authorized  to  sell  the  house  and  lot  for  less  than  two  thousand 
eight  hundred  dollars.  This  being  the  ease,  their  alleged  contract, 
as  auctioneers,  to  sell  the  same  to  the  plaintiff  for  12,250  was  not 
binding  upon  the  owner.  The  defendants  were  constituted 
agents  for  a  particular  purpose  and  under  a  limited  and  circum- 
scribed power,  and  could  not  bind  their  principal  beyond  their 
authority;  See  Unity  vs.  Carswe  I,  2  Johns.  48;  Andreivs  vs.  Knee- 
lanil,  i'j  Cow.  354;  Gibson  vs.  Colt,  7  Johns.  390;  Xixon  vs.  Palmar, 
8  N.  Y.  398;  Mortimer  vs.  Cormvell,  Holl.  Ch.  351;  Story  on 
Agency,  Sees.  17-23,  126,  131,224. 

If  the  owner  of  the  premises  had  authorized  the  defendants  to 


Chap.  II]  Bush  vs.  Cole.  651 

sell  the  same  at  anction,  without  any  limitation  as  to  the  price, 
the  contract  of  sale  which  the  defendants  executed  would  have 
bound  him.  It  would  have  answered  the  requirements  of  the 
statute  of  frauds;  and  according  to  the  uniform  course  of  decisions 
in  this  State,  the  defendants  are  personally  bound  by  the  contract. 
It  does  not  show  who  the  owner  of  the  premises  was.  But  if  it 
did,  the  defendants  would  be  personally  liable  upon  it,  because  the 
owner  did  not  authorize  them  to  make  such  a  contract  in  his 
name  or  for  him.  See  White  vs.  Skinner,  13  Johns.  307,  7  Am. 
Dec.  381;  Brown  vs.  Feeler,  7  Wend.  305;  Commercial  Bank  vs. 
Norton,  I  Hill,  502;  Coleman  vs.  Garrigues,  18  Barb,  60.  It  was 
not  so  framed  and  executed  that  neither  the  defendants  nor  their 
alleged  principal  could  be  bound  by  it,  as  the  agreement  was  in 
Sherman  vs.  N.  T  Cent.  E.  R.  Co.,  22  Id.  239.  It  shows  that  the 
defendants  signed  it  as  agents  of  an  undisclosed  principal;  and  as 
they  did  so  without  authority,  they  were  primarily  responsible  as 
contracting  parties.  Episcopal  Church  of  St,  Peter  vs.  Tarian, 
28  Id.  644;  Mills  vs.  Bunt,  20  Wend.  431. 

If  these  views  are  correct,  there  can  be  no  doubt  that  the  defend- 
ants were  liable  to  refund  to  the  plaintiff  the  $222.50  percentage 
on  his  bid,  and  the  $10  auctioneers'  fees  which  they  received  of 
him  when  the  contract  of  sale  was  made,  with  interest  on  the  same, 
and  if  we  are  to  assume  that  the  verdict  of  the  jury  establishes  that 
the  defendants  knew  they  were  not  authorized  to  sell  the  premises 
for  less  than  $2,800,  when  they  struck  them  off  to  the  plaintiff  for 
$2,250,  he  was  also  entitled  to  recover  what  the  premises  were 
worth  over  and  above  the  price  he  was  to  pay  therefor;  for  this 
proposition  is  clearly  sustained  by  the  decisions  in  Trull  vs. 
Granger,  8  N.  Y.  115;  Briggs  vs.  Bwight,  17  Wend.  71,  31  Am. 
Dec.  283;  and  Brincherhoff  vs.  Phelps,  24  Barb.  100;  and  neither 
of  these  decisions  was  overruled  by  this  court  in  Conger  vs.  Weaver, 
20  N.  Y.  140.  The  rule  seems  to  be,  that  if  the  vendor  acts  in 
good  faith,  and  as  a  prudent  man  should,  the  vendee  can  recover 
nothing  for  the  loss  of  a  good  bargain.  Peters  vs.  IIcEeon,  4 
Denio,  546.  But  if  he  contracts  to  sell  lands  to  which  he  has  no 
color  of  title,  or  perversely  refuses  to  perform  his  contract,  when 
there  is  no  obstacle  in  the  way,  or  makes  an  agreement  to  sell  as 
agent,  without  authority  from  the  owner,  he  is  liable  for  damages 
beyond  the  part  of  the  consideration  paid  and  interest.  See 
Baldwin  vs.  Munn,  2  Wend.  399,  20  Am.   Dec.   627;  Kelly  vs. 


652  Cases  on  Agexct.  [  Book  V 

Dutch   Church,   2  Ilill,    116;   King  vs.  Brown,   2  Id.  488  and 
authorities  supra. 

We  must  assume  that  the  verdict  of  the  jury  sho^vs  the  defend- 
ants did  not  act  in  good  faith,  because  the  jury  found  specifically  that 
the  owner  limited  the  price  for  which  the  premises  might  be  sold, 
and  that  such  limitation  was  made  known  to  the  defendants, — 
which  price  was  greater  than  that  for  which  they  struck  off  the 
premises  to  the  plaintiff. 

The  motion  for  a  non-suit  was  properly  denied  for  two  reasons: 
1.  The  plaintiff  was  clearly  entitled  to  recover  the  percentage  and 
autioneer's  fees  which  he  paid  to  the  defendants,  and  interest 
thereon;  2.  The  evidence  raised  the  question  whether  the  defend- 
ants did  not  act  in  bad  faith,  in  agreeing  to  sell  the  premises  for 
less  than  the  price  limited  therefor  by  the  owner.  The  evidence 
that  the  premises  were  worth  more  than  the  price  the  plaintiff  was 
to  pay  therefor  was  competent,  if  in  any  view  of  the  case  the  plaint- 
iff could  recover  for  the  loss  of  a  good  bargain  and  as  there  was  suffi- 
cient evidence  to  justify  the  judge  in  submitting  the  question  to 
the  jury,  whether  the  defendants  did  not  act  in  bad  faith  in  selling 
the  premises  to  the  plaintiff  for  a  less  sum  than  they  were  autlior- 
ized  to  take  therefor,  the  evidence  that  the  premises  were  worth 
more  than  the  contract  price,  was  admissible. 

The  charge  on  the  question  of  damages  is  not  in  the  case,  and 
the  presumption  is,  it  was  correct. 

My  conclusion  is  that  no  error  was  committed  on  the  trial,  unless 
the  verdict  was  against  the  evidence.  But  whether  it  was  is  not 
for  us  to  determine.  The  decision  of  the  Supreme  Court  that  it 
was  not  against  evidence  is  conclusive  upon  the  defendants. 

It  follows  that  the  judgment  of  the  supreme  court  should  be 
affirmed  with  costs.  Denio,  C.  J.,  delivered  an  opinion  for  affirm- 
ance.    All  the  judges  concurred. 

Judgment  affirmed. 

Note. — See,  also,  Kroeger  va.  Pitcaim,  ante,  501;  Simmonavs.  More, 
605;  Patterion  va.  Lippincoit,  607;  Peter  a  va.  Famawurth,  887. 


Chap.  II]  Thompson  ys.  Kelly.  653 

( 101  Massachusetts  291,  3  Am.  Rep.  353.) 

THOMPSON  vs.  KELLY. 

(Supreme  Judicial  Court  of  Massachusetta,  March,  1869,) 

Action  by  plaintiffs,  who  were  anctioneers,  to  recover  the  snm  of 
$200,  alleged  to  be  due  them  from  defendant  because  of  his  failure 
to  complete  the  purchase  of  projierty  struck  off  to  him  by  plaintiff. 

A  house  fitted  only  with  cold  water  was  advertised  by  plaintiff 
for  sale  at  auction  as  fitted  with  "  hot  and  cold  water,''  and  sub- 
ject to  examination  at  any  time  before  sale.  The  mistake  was 
announced  by  the  auctioneer  at  the  opening  of  the  sale.  The 
property  was  sold  to  Kelly,  who  had  read  the  advertisement,  but 
had  not  examined  the  house  nor  heard  the  announcement  as  to 
the  mistake.  He  signed  the  agreement  to  comply  with  the  terms 
of  sale,  one  of  which  was  that  the  purchaser  should  pay  the 
auctioneer  $200  to  bind  the  bargain,  and  forfeit  that  amount  if  he 
failed  to  comply  with  the  terms.  At  the  head  of  this  agreement 
was  the  advertisement  with  the  words  **hot  and'*  erased.  On 
examining  the  house  and  finding  no  hot  water  fixtures,  Kelly 
refused  to  complete  the  sale  or  pay  the  $200. 

C.  R.  Train,  for  plaintiffs. 

L.  Child  S  L.  M.  Child,  for  defendant. 

"Wells,  J.  The  report  does  not  state  what  questions  were 
intended  to  be  presented  to  this  court.  The  defendant  was  clearly 
entitled  to  go  to  the  jury  upon  the  testimony.  But  he  makes  no 
point  in  the  argument  here,  that  he  was  wrongfully  deprived  of 
that  right.  We  assume,  therefore,  that  the  verdict  was  ordered  for 
the  plaintiffs  with  his  assent;  and  that  he  did  not  desire  to  argue 
to  the  jury  upon  the  force  of  the  testimony. 

We  cannot  undertake  to  decide  questions  of  fact.  We  can 
only  take  the  testimony  as  reported,  giving  it  full  effect  so  far  as 
uncontradicted,  and,  in  all  points  of  disagreement,  assuming  that 
of  the  defendant  to  be  true;  and  if,  upon  the  testimony  so  consid- 
ered, there  appears  to  be  a  prima  facie  case  for  the  plaintiffs  to 
which  there  is  no  legal  defense  shown,  the  verdict  must  stand. 

No  question  is  made  upon  the  pleadings.  The  two  principal 
questions  presented  for  our  consideration  are:  1st.  Whether  the 
action   can  be  maintained  in  the  names  of  the  plaintiffs.      2d. 


654  Cases  on  Agency.  [Book  V 

"Whether  the  mistake,  under  which  the  defendant  signed  the  mem- 
orandum of  sale,  was  such  as  entitled  him  to  repudiate  the  purchase. 

1.  In  case  of  personal  property,  an  auctioneer,  employed  to  sell, 
may  ordinarily  maintain  an  action  for  the  price,  or  for  the  prop- 
erty itself.  Chit.  Con.  (10th  Am.  ed.)  25^;  1  Chit.  PI.  (6th  ed.) 
7,  8;  Story  on  Agency,  §§  27,  107,  397;  Tyler  vs.  Free77ian,3CuBh. 
261.  This  doctrine  stands  upon  the  right  of  the  auctioneer  to 
receive,  and  his  responsihility  to  his  principal  for,  the  price  of  the 
property  sold,  and  his  lien  thereon  for  his  commissions;  which  give 
him  a  special  property  in  the  goods  intrusted  to  him  for  sale,  and 
an  interest  in  the  proceeds.  In  case  of  real  estate,  he  can  have  no 
such  special  property,  and  would  not  ordinarily  he  held  entitled  to 
receive  the  price.  But  when  the  terms  of  his  employment,  and  of 
the  authorized  sale,  contemplate  the  payment  of  a  deposit  into  his 
hands  at  the  time  of  the  auction,  and  before  the  completion  of  the 
sale  by  the  delivery  of  the  deed,  he  stands,  in  relation  to  such 
deposit,  in  the  same  position  as  he  does  to  the  price  of  personal  prop- 
erty sold  and  delivered  by  him.  He  may  receive  and  receipt  for 
the  deposit;  his  lien  for  commissions  will  attach  to  it;  and  we  see 
no  reason  why  he  may  not  sue  for  it  in  his  own  name,  whenever  an 
action  for  the  deposit,  separate  from  the  other  purchase-money, 
may  become  necessary. 

In  this  case,  if  there  was  an  effectual  sale,  the  amount  of  the 
deposit  due,  by  its  term.s,  not  having  been  paid  at  the  time,  there 
is  an  implied  promise  to  pay  it.  That  promise  inures  to  the  ben- 
efit of  the  party  legally  entitled  to  receive  the  deposit.  It  is  not 
merged  in  the  written  agreement,  because  that  writing  clearly 
excludes  it  as  a  matter  already  otherwise  provided  for.  There  is 
also  a  subsequent  express  promise  to  pay  the  amount,  coupled  only 
with  the  condition  *'  if  the  house  is  all  right."  The  defendant 
does  not  deny  that  the  house  was  "all  right,"  except  in  the  par- 
ticular upon  which  he  seeks  to  defeat  the  entire  sale. 

The  memorandum  is  suflicient  to  take  the  case  out  of  the  statute 
of  frauds. 

The  plaintifTs,  it  is  true,  are  not  parties  to  the  written  instru- 
ment. But  they  do  not  sue,  and  it  is  not  necessary  that  they 
should  sue,  upon  the  writing.  Tlio  obligations  in  relation  to  the 
deposit  are  outside  of  that,  and  are  so  recognized  by  the  writing 
itself. 

2.  The  mistake  for  which  the  defendant  seeks  to  avoid  the  con- 
tract of  sale,  was  not  occasioned  by  any  fault  of   the  plaintiffs.     It 


Chap.  II]  Thompson  vs.  Kelly.  655 

did  not  affect  the  identity  of  the  property  which  was  the  subject  of 
the  sale.  The  error  in  the  advertisement  does  not  appear  to  have 
been  otherwise  than  in  good  faith,  and  was  corrected  and  explained 
when  the  property  was  offered  for  bids.  The  defendant,  without 
previously  examining  the  property,  and  not  having  been  present  at 
the  opening  of  the  sale,  when  statements  and  explanations  in  rela- 
tion to  the  property  offered  might  reasonably  be  expected  to  be 
made,  took  no  precaution  to  inquire,  but  relied  wholly  upon  the 
published  advertisements.  He  contented  himself  with  reading  a 
part  only  of  the  memorandum  which  was  placed  before  him  for 
signature,  and  which  exhibited  the  modification  in  the  description 
of  the  property,  by  an  erasure  of  "hot  and"  from  the  printed 
advertisement  attached.  It  does  not  appear  that  the  plaintiffs,  or 
Garrett,  in  any  way  conducted  so  as  to  mislead  him,  or  induce 
him  to  forego  scrutiny  or  inquiry;  nor  that  either  of  them  knew, 
or  had  reason  to  suppose,  that  he  was  thus  misled,  or  that  he  was 
not  present  when  the  alteration  of  the  advertisement  was  explained. 
Upon  his  own  statement,  we  do  not  think  he  makes  such  a  case  of 
mistake  as  entitles  him  to  be  released  from  his  contract. 

Judgment  on  the  verdict. 

NoTB.— See,  also,  as  to  agents'  right  to  sue:  Bowe  vs.  Rand,  ante,  p.  257; 
Khoadea  vs.  Blackston,  ante,  p.  564. 


(2  RiCHARDSOiir's  Law,  464.) 

BOINEST   vs.  LEIGNEZ. 

(South  Carolina  Court  of  Appeals,  October,  181,5.) 

Action  of  assumpsit  to  recover  damages  upon  the  re-sale  of  cer- 
tain chattels  originally  purchased  by  defendant  from  the  plaintiff 
at  an  auction  sale,  and  which  had  been  re-sold  at  a  loss.  Defense, 
among  other  things,  that  before  payment  of  the  price  defendant 
had  tendered  back  the  chattels  to  the  auctioneer  and  rescinded  the 
sale.  Verdict  for  plaintiff  and  defendant  appealed  and  moved  for 
a  new  trial. 

Kttnhardt,  for  motion. 

Porter,  contra. 

Feobt,  J.    (After  disposing  of  the  first  ground  of  appeal.)    The 


656  Oases  on  Ageuct.  [Book  V 

second  ground  affirms  that  the  auctioneer  may  rescind  a  contract 
of  sale  made  through  his  agency;  or  at  least,  that  he  may,  before 
the  sale  is  completed  by  the  payment  of  the  purchase  money. 
Even  the  more  limited  alternative  presented  in  this  ground,  can- 
not be  maintained.  An  auctioneer  is  an  agent  to  eCect  a  sale.  As 
soon  as  the  sale  is  effected,  his  agency  ceases.  If  he  has  pursued 
his  instructions,  he  is  in  no  manner  liable  for  the  execution  of  the 
contract,  and  can  neither  add  to,  nor  take  from,  the  terms  and 
conditions  the  principal  has  prescribed.  His  intervention  was 
only  employed  to  make  the  sale,  and  is  withdrawn  as  soon  as  that 
is  done,  and  the  rest  is  left  to  the  parties.  In  Nelson  vs.  Al- 
bridge,  2  Stark,  N.  P.  435.  3  Eng.  0.  L.  R.  419,  an  auctioneer  had 
sold  a  horse  of  the  plaintiffs,  and  took  him  back  from  the  purchaser 
without  payment  of  the  deposit,  on  his  com.plaint  that  the  horse 
did  not  answer  the  description  in  the  advertisement.  For  this,  the 
auctioneer  was  held  liable.  Best,  C.  J.,  said:  "It  was  the  duty 
of  the  auctioneer  to  sell,  and  not  to  rescind,  to  do  and  not  to  undo; 
and  the  law  would  imply  a  contract,  on  his  piirt,  to  discharge  hig 
duty;"  and  the  pluiutlff  had  a  verdict.     ♦     *    • 

Motion  denied. 


II. 

auctioneer's  liability. 


(68  Maryland,  229,  6  Am.  St.  Rep.  437.) 

HIGGIXS  vs.  LODGE. 

f' Court  of  Appeals  of  Maryland,  October,  1SS7.J 

Replevin.     The  opinion  states  the  case. 
Charles   \V.  Field,  Jr.,  for  the  appellant. 
William  L'eynolds,  for  the  appellees. 

Bryan,  J.  Lodge  and  others  replevied  certain  goods  from 
Iliggins.  The  evidence  tended  to  show  tliut  one  Ilirsch  Levy  had 
made  a  fraudulent  purchase  of  tliese  goods  from  the  plaintiffs  and 
that  ho  had  sent  tlicm  for  public  sale  to  the  dtft/ndnnt,  who  was 
an  auctioneer.  The  doleudaut  had  made  advaucea  of  money  on 
them. 


Chap.  II]  HiGQiNS  vs.  Lodge.  657 

On  the  supposition  that  the  pnrchase  of  the  goods  from  the 
plaintiffs  had  been  accomplished  by  the  fraud  of  Levy,  it  is  not 
questioned  that  it  was  void  at  the  election  of  the  sellers,  and  that 
they  could  have  reclaimed  their  property  from  him.  But  if  he 
sold  them  to  a  lonafide  purchaser  without  notice  of  the  fraud,  a 
good  title  would  be  passed  which  could  not  be  impeached  by  the 
original  vendor.  Ordinarily  a  purchaser  cannot  acquire  a  title  from 
a  vendor  who  has  none. 

But  the  authorities  show,  without  dissent,  that  there  is  no  excep- 
tion under  the  circumstances  which  we  have  just  supposed.  In 
Powel  vs.  Bradlee,  9  Gill  &  J.  278,  it  is  said:  "In  such  a  case 
good  faith  and  a  valuable  consideration  would  be  essential  constit- 
uents of  a  good  title.''  If  these  features  do  not  appear  in  the 
transaction,  we  take  it  that  the  title  fails.  An  interest  in  the  goods, 
acquired  by  making  advances  on  them  when  placed  in  the  hands  of 
an  auctioneer  for  sale,  would  be  protected  under  the  same  circum- 
stances which  would  make  a  purchase  valid. 

The  court  instructed  the  jury  that  if  Levy's  purchase  was  fraud- 
ulent, the  defendant's  title  would  be  defeated,  unless  they  found 
he  had  in  good  faith  advanced  money  to  Levy  upon  the  security 
of  the  goods,  or  incurred  expenses  in  relation  to  them.  On  the 
prayer  of  the  defendant,  the  court  ruled  that  the  plaintiff  could 
not  recover,  if  the  jury  found  that  the  advances  were  made  by  the 
defendant  without  notice  or  knowledge  of  the  circumstances  under 
which  Levy  purchased  the  goods. 

On  the  prayer  of  the  plaintiffs,  it  was  ruled  that  they  were  not 
precluded  from  recovering  by  these  advances,  if  the  jury  found 
that  at  the  time  the  goods  were  delivered  to  the  defendant,  he  had 
knowledge  of  circumstances  calculated  to  put  a  man  of  ordinary 
prudence  on  inquiry  as  to  whether  Levy  was  perpetrating  a  fraud 
in  selling  the  goods  by  auction,  and  that  he  failed  to  make  inquiry 
into  the  character  of  the  transaction.  Taking  these  instructions 
together,  it  seems  to  us  that  they  laid  the  case  properly  before  the 
jury.  Higgins  could  not  deduce  title  to  the  goods  through  a 
fraudulent  vendee  unless  he  showed  that  his  advances  were  made 
in  good  faith.  If  he  knew  that  Levy  was  selling  these  goods  for 
the  purpose  of  carrying  into  effect  a  fraud,  his  advances  could  not 
be  considered  as  made  in  good  faith;  and  if  the  circumstances 
were  such  as  reasonably  to  call  for  inquiry,  and  if  inquiry  would 

42 


658  Cases  oif  Agekcy.  [Book  V 

have  given  him  this  knowledge,  he  is  responsible  in  the  same  way 
aa  if  he  had  obtained  it. 

It  has  been  held  that  if  in  any  purchase  "  there  be  circumstances 
which,  in  the  exercise  of  common  reason  and  prudence,  ought  to 
put  a  man  upon  particular  inquiry,  he  will  be  presumed  to  have 
made  that  inquiry,  and  will  be  charged  with  notice  of  every  fact 
which  that  inquiry  would  give  him."  Baynard  vs.  Xorris,  5  Gill, 
483,  4G  Am,  Dec.  G47.  To  the  same  effect  are  Green  vs.  Early,  39 
Md.  229;  Abrams  vs.  Slieehan,  40  Id.  440. 

The  evidence  showed  that  Levy  rented  a  basement-room  about 
the  loth  of  June,  1885,  and  commenced  business  as  a  jobber;  that 
between  that  time  and  September  7th  he  purchased  a  large  quan- 
tity of  goods — six  thousand  dollars'  worth  being  purchased  from 
these  plaintiffs;  that  in  the  latter  part  of  June,  1885,  he  com- 
menced sending  goods  to  the  defendant  to  be  sold  by  auction,  the 
defendant  making  advances  on  them;  that  he  continued  to  send 
goods  for  this  purpose,  and  to  receive  advances  from  the  defendant 
until  September  5th;  that  the  amount  of  these  auction  sales  was 
more  than  six  thousand  four  hundred  dollars;  that  on  September 
5th  Levy  had  in  his  store  only  four  or  five  hundred  dollars'  worth 
of  goods;  that  the  week  before  he  had  fifteen  thousand  dollars' 
worth;  that  he  had  opened  a  bank  account  on  the  11th  of  July,  and 
on  the  7th  of  September  he  drew  out  the  balance  to  his  credit, 
with  the  exception  of  a  small  sum;  that  after  that  day  he  was 
regarded  as  utterly  insolvent;  that  he  purchased  the  goods  in  ques- 
tion from  the  plaintiffs  on  the  21st  of  August  on  credit,  the  time 
fixed  for  payment  being  October  10th;  that  the  small  balance  to 
his  credit  in  the  bank  was  attached  by  creditors,  and  that  after 
September  his  business  was  conducted  in  his  wife's  name. 

The  evidence  certainly  warranted  tlie  jury  in  finding  that  when 
Levy  purchased  tliese  goods  he  did  not  intend  to  pay  for  them, 
and  that  he  was  engaged  in  a  deliberate  scheme  of  fraud,  which  he 
was  effecting  by  purcliasing  hirgo  quantities  of  goods  on  credit,  sell- 
ing them  by  auction  and  putting  the  proceeds  beyond  the  reach  of  his 
creditors.  Notwithstanding  fraud  on  tlie  part  of  Levy  in  making 
the  purchase  in  (juestion  in  tliis  case,  the  title  of  Iliggins  would  be 
good  if  the  matters  within  his  knowledge  did  not  reasonably  sug- 
gest to  him  the  propriety  of  enquiring  into  the  transactions  in 
which  Levy  was  engaged,  and  if  this  enquiry  would  not  have  dis- 


Chap.  II  ]  HiGGiNS  vs.  Lodge.  659 

covered  his  frandnlent  course.     It  was  the  province  of  the  jury  to 
determine  this  question  on  the  evidence  in  the  cause. 

Judgment  affirmed. 

Note. — In  Lewis  vs.  Mason,  (1887)  94  Mo.  551,  Levy  had  made  a  transfer 
of  goods  to  one  Landecker  which  was  alleged  to  be  in  fraud  of  creditors. 
Laudecker  consigned  them  for  sale  to  plaintiff  who  advanced  money  upon 
them  without  notice  of  the  fraud.  While  in  his  hands  they  were 
attached  by  creditors  of  Levy.  Said  the  court,  "  under  this  state  of  facts, 
plaintiff  had  a  right  to  the  possession  of  the  goods  as  against  an  attaching 
creditor;  of  wliich  possession  he  could  not  be  deprived  either  by  the  con- 
signor or  creditors  of  the  consignor  till  his  advances,  commissions  and 
charges  were  tendered  him,  and  he  was  made  whole.  The  principle  here 
stated  is  supported  by  the  following  authorities;  Baugh  vs.  Kilpatrick, 
54  Pa.  St.  84;  Montieth  vs.  Printing  Co.,  16  Mo.  App.  450;  Drake  on 
Attach,  pp.  204r-5,  §  245;  Jones  on  Pledges,  §  372;  Story  on  Agency,  g  27." 
See,  also,  Stephens  vs.  Elwall,  ante,  p.  226,  and  note. 


(Law  Reports,  8  Queen's  Bench,  286.) 
HARRIS   vs.   NICKERSON. 

(English  Court  of  Queen's  Bench,  April,  1873.  J 

The  defendant,  an  auctioneer,  advertised  in  the  London  papers 
that  certain  brewing  materials,  plant  and  office  furniture  would  be 
sold  by  him  at  Bury  St.  Edmunds  on  a  certain  day  and  two  follow- 
ing days.  The  plaintiff  a  commission  broker  in  London,  having  a 
commission  to  buy  the  office  furniture,  went  down  to  the  sale;  on 
the  third  day,  on  which  the  furniture  was  advertised  for  sale,  all  the 
lots  of  furniture  were  withdrawn.  Upon  which  the  plaintiff 
brought  an  action  against  the  defendant  to  recover  for  his  loss  of 
time  and  expenses: — 

On  these  facts  the  judge  gave  judgment  for  the  plaintiff,  but  at 
the  request  of  the  defendant,  gave  him  leave  to  appeal. 

If  the  court  was  of  opinion  that  the  plaintiff  was  not  entitled  to 
recover,  the  judgment  was  to  be  set  aside  and  a  non-suit  entered. 

Macrae  Moir,  for  the  defendant,  contended  that  it  was  clear  that 
the  mere  advertising  of  a  sale  did  not  amount  to  a  contract  with 
anybody  who  attended  the  sale,  that  any  particular  lot,  or  class  of 
articles  advertised,  would  be  put  up  for  sale.  He  referred  to  Warlow 
vs.  Harrison,  1  E.  &  E.  295,  309,  28  L.  J.  Queens  B.  18,  29  Id. 
14,  and  Payne  vs.  Cave,  3  Term  Rep.  148, 


660  Cases  ok  Agency.  [Book  V 

(QuAiN,  J.,  referred  to  Mainprice  vs.  Westky,  6  B.  S.  420,  34  L. 
J.  Q.  B.  229.) 

Warton,  for  the  plaintiff,  contended  that  the  advertisement 
of  the  sale  by  the  defendant  was  a  contract  by  him  with  the  plaint- 
iff, who  attended  .the  sale  on  the  faith  of  it,  that  he  would  sell  the 
property  advertised  according  to  the  conditions;  and  the  with- 
drawal of  the  property  after  the  plaiutifi  had  incurred  expenses  in 
consequence  of  the  advertisement  was  a  breach  of  such  contract. 
A  reasonable  notice  of  the  withdrawal,  at  all  events,  ought  to  have 
been  given.  He  likened  the  case  to  that  of  an  advertisement 
of  a  reward,  which,  though  general  in  its  inception,  becomes  a 
promise  to  the  particular  person  who  acts  upon  it  before  it  has 
been  withdrawn.  Williams  vs.  Carimrdine,  4  B.  &  Ad.  621. 
He  referred  to  Speyiccr  vs.  Harding,  L.  Kep.  5  C.  P.  561. 
Macrae  Moir  was  not  heard  in   reply. 

Blackburn,  J.  I  am  of  opinion  that  the  judge  was  wrong. 
The  facts  were  that  the  defendant  advertised  bona  fide  that  certain 
things  would  be  sold  by  auction  on  the  days  named,  and  on  the 
third  day  a  certain  class  of  things,  viz.,  office  furniture,  without 
any  previous  notice  of  their  withdrawal,  were  not  put  up.  The 
plaintiff  says,  inasmuch  as  I  confided  in  the  defendant's  advertise- 
ment, and  came  down  to  the  auction  to  buy  the  furniture  (which  it 
is  found  as  a  fact  he  was  commissioned  to  buy)  and  have  had  no 
opportunity  of  buying,  I  am  entitled  to  recover  damages  from  the 
defendant,  on  the  ground  that  the  advertisement  amounted  to  a 
contract  by  the  defendant  with  anybody  that  should  act  upon  it, 
that  all  the  things  advertised  would  be  actually  put  up  for  sale, 
and  that  he  would  have  an  opportunity  of  bidding  for  them  and 
buying.  This  is  certainly  a  startling  proposition,  and  would  be 
excessively  inconvenient  if  carried  out.  It  amounts  to  saying  that 
any  one  who  advertises  a  sale  by  publishing  an  advertisement 
becomes  responsible  to  everybody  who  attends  the  sale  for  his  cab 
hire  or  traveling  expenses. 

As  to  the  cases  cited:  in  the  case  of  Warlow  vs.  Harrison  1  E.  & 
E.  at  pp.  314,  318,  29  L.  J.  Q.  B.  14,  the  opinion  of  the  majority 
of  the  judges  in  the  Exchequer  Chamber  appears  to  have  been 
that  an  action  wonld  lie  for  not  knocking  down  the  lot  to  the 
highest  bo7ia  fide  bidder  when  the  sale  was  advertised  as  without 
reserve;  in  such  a  case  it  may  be  that  there  is  a  contract  to  sell  to 
the  highest  bidder,  and  that  if  the  owner  bids  there  is  a  breach  of 
the  contract;  there  ie  very  plausible  ground  at  all  events  for  saying. 


Chap.  II]  Harris  vs.  Nigkersok.  661 

as  the  minority  of  the  Court  thought,  that  the  auctioneer  warrants 
that  he  has  power  to  sell  without  reserve.  In  the  present  case, 
unless  every  declaration  of  intention  to  do  a  thing  creates  a  bind- 
ing contract  with  those  who  act  upon  it,  and  in  all  cases  after 
advertising  a  sale  the  auctioneer  must  give  notice  of  any  articles 
that  are  withdrawn,  or  be  liable  to  an  action,  we  cannot  hold  the 
defendant  liable. 
QuAiu,  and  Archibald,  JJ.,  delivered  concurring  opinions. 


IV. 

AUCTIONEER'S    U.B1S, 


(Law  Eeports,  30  Chancery  Division,  192.) 

WEBB  vs.  SMITH. 

C  English  Court  of  Appeal,  January,  1885. J 

Plaintiff  was  a  creditor  of  one  Canning,  for  whom  the  defend- 
ants, as  auctioneers,  had  sold  both  real  and  personal  property. 
Canning  directed  defendants  to  pay  plaintiff  from  the  proceeds  of 
the  real  estate  which  was  a  brewery.  Defendants  wrote  to  plaint- 
iff, saying:  "We  are  in  receipt  of  Mr.  Canning's  letter  requesting 
us  to  pay  you  the  sum  of  £503,  and  we  hope  the  settlement  will 
shortly  be  made,  when  we  shall  have  much  pleasure  in  complying 
with  his  instructions,  if  we  have  sufficient  in  hand  to  enable  us  to 
do  so.  You  will  understand  that  we  only  hold  the  deposit,  and 
therefore  are  unable  to  say  exactly  what  sum  we  shall  have  in  hand 
at  the  settlement."  Plaintiff  did  not  reply  to  this.  Afterwards 
Canning  revoked  the  authority  to  pay  plaintiff,  saying  he  would 
pay  it  himself,  and  defendants  thereupon  paid  Canning  the  bal- 
ance in  their  hands,  having  first  paid  out  of  the  fund  produced 
from  the  sale  of  the  real  estate  certain  charges  which  they  had 
incurred  in  reference  to  it,  and  also  deducting  and  setting  off  what 
Canning  owed  them  for  advances  and  services.  In  an  action  by 
plaintiff  to  charge  defendants  it  was  held  that  they  were  not 
entitled  to  deduct  their  charges  from  the  real  estate  fund. 
Defendants  appealed. 

Hemming,  Q.  C,  and  Shebheare,  for  appellants. 


662  Cases  oif  Agekcy.  [Book  V 

Marten,  Q.  C,  and  Eadley,  for  appellees. 

LiNDLEY,  L.  J.  This  case  is  of  considerable  importance:  it  is 
an  experiment  tried  for  the  first  time.  The  action  is  brought 
against  the  auctioneers,  who  have  sold  a  brewery  for  a  customer. 
The  plaintiff  relies  upon  an  equitable  assignment  to  him  by 
Canning,  and  the  first  question  is,  what  are  the  plaintiff's  rights 
under  the  equitable  assignment?  The  vice-chancellor  seems  to 
have  considered  that  the  letter  of  the  defendants  prevented  them 
from  exercising  any  rights  which  they  might  have.  The  terms  of 
that  letter  have  been  fully  commented  upon,  and  it  is  plain  that 
the  defendants  did  not  intend  to  exclude  themselves  from  any 
rights  which  they  might  have.  It  seems  to  me  that  this  disposes 
of  the  point  decided  in  the  plaintiff's  favor.  It  has  been  contended 
that  auctioneers  have  no  lien,  but  they  have  a  particular  lien 
although  not  a  general  lien;  it  is  so  laid  down  in  all  the  books  and 
in  Robiimon  vs.  Rutter,  4  E.  &  B,  954,  and  as  to  the  question  of 
set-off  this  case  is  covered  by  Bozburghe  vs.  Cox,  17  Ch.  D.  520. 
So  far  as  to  the  balance  of  the  fund  produced  by  the  sale  of  the 
brewery,  the  law  is  clear. 

But  then  the  plaintiff  Webb,  relies  upon  another  point,  namely, 
as  to  marshalling,  and  as  to  this  the  action  is  an  experiment.  The 
plaintiff  Webb  had  a  right  of  action  and  also  a  charge  upon  the 
fund  in  the  defendants'  hands,  but  the  defendants  had  many  rights: 
they  had  a  right  of  lien  and  also  they  had  a  right  of  set-off.  It  is 
argued  for  the  plaintiff  Webb  that  the  defendants  were  bound  to 
obtain  payment  out  of  the  fund  produced  by  the  sale  of  the  furni- 
ture, so  that  he  might  obtain  payment  out  of  the  fund  produced  by 
the  sale  of  the  brewery.  Now,  I  will  suppose  that  the  defendants 
had  no  fund  upon  which  they  could  rely  by  way  of  set-off. 

There  is  a  case  which  I  will  mention  where  the  matter  is  treated 
of:  it  refers  to  the  jurisdiction  of  the  Court  of  Admiralty,  and  is 
called  *'  The  Arab,"  5  Jur.  (N.  S.)  417.  In  that  case  the  holder  of 
a  bottomry  bond  tried  to  compel  the  crew  of  a  ship  to  waive  their 
right  of  maritime  lien  for  wages  for  services  rendered,  and  to  sue 
the  owners,  who  were  perfectly  solvent.  The  holder  of  the  bot- 
tomry bond  had  only  a  remedy  against  the  ship:  whereas  the  crew 
had  also  a  personal  remedy  by  action  of  debt  against  the  owners. 
The  judge  of  the  Court  of  Admiralty  held  that  he  had  no  jurisdic- 
tion to  restrain  the  proceedings  of  the  crew  against  the  ship,  and 
to  compel  them  to  resort  to  a  personal  remedy  against  the  ship  own- 


Chap.  II  ]  Webb  vs.  Smith.  663 

era:  and  the  reason  given  is  that  there  were  not  two  funds  under 
the  control  of  the  court.  In  the  present  case,  I  think  that  we  are 
compelled  to  lay  aside  the  suggestion  that  the  defendants  are  bonnd 
to  give  up  their  security  and  to  sue  Canning  for  the  money  due 
to  them,  or  at  least  to  retain  the  sum  due  to  them  out  of  the  fund 
produced  by  the  sale  of  the  furniture.  Such  a  suggestion  is 
founded  on  a  mistake.  It  is  not  warranted  by  Aldricli  vs.  Cooper, 
8  Ves.  382,  or  by  any  case  decided  before  Lord  Haedwicke.  But 
a  principle  has  been  laid  down,  which  has  found  its  way  into  the 
text-books,  and  it  is  that  assets  shall  not  be  marshalled  where  by 
so  doing  another  man's  right  would  be  prejudiced;  in  this  case  if 
the  doctrine  of  marshalling  were  applied,  we  should  prejudice  the 
right  of  the  defendants  as  to  their  lien. 

The  general  principle  of  marshalling  was  stated  by  Sir  "William 
Geaktt,  M.  E.,  in  Trimmer  vs.  Bayne,  9  Ves.  209,  211,  in  the 
words  that  **&.  person  having  resort  to  two  funds  shall  not  by  his 
choice  disappoint  another,  having  one  only.'*  That  appears 
to  be  a  correct  statement  of  the  law.  The  vice  of  the  argument 
for  the  plaintiff  is  that  in  truth  there  were  not  two  funds  to  which 
the  defendants  could  resort;  that  is,  two  funds  standing  upon  an 
equal  footing.  The  defendants  had  a  superior  right  of  lien  as  to 
the  fund  produced  by  the  sale  of  the  brewery.  I  think,  however, 
that  they  could  not  have  deprived  the  plaintiff  of  the  benefit  of 
his  charge,  if  there  had  been  two  funds  to  which  they  might  have 
resorted  under  equal  circumstances.  The  appeal  of  the  defendants 
must  be  allowed. 

Bkett,  M.  E.,  and  CottoisJ',  L.  J.,  delivered  concurring 
opinions* 


664 


Oases  o:s  Agency. 


[Book  V 


CHAPTER    III. 

OF  BROKERS. 


Who  is  a  broker: 

Sibhald  vs.  Bethlehem  Iron  Co., 
ante,  p.  801. 
When  is  deemed  to  have  completed 
his  undertaking: 
Sibhald  vs  Bethlehem  Iron  Co., 
ante,  p.  801. 
Wrongful  discharge  of: 

Siobald  vs.  Bethlehem  Iron  Co., 
ante,  p.  301 
Commissions  of: 

Sibbald  vs.  Bethlehem  Iron  Co., 
ante,  p.  801. 


Commissions  of — Continued: 

Rice  vs.  Wood,  ante,  p.  13. 

Bell  vs.  McConnell,  ante,  p.  588. 
Acting  for  both  parties: 

Bice  vs.  Wood,  ante,  p.  12. 

Bell  vs.  McConnell,  ante,  p.  688. 

Vinton  vs.  Baldwin,  post,  p.  664 
Employment  of  two  or  more: 

Ahem  vs.  Baker,  ante,  p.  288. 
Liability  for  acting  without  author- 
ity: 

Simmons  va.  More,  ante^  p.  606. 


(88  Indiana,  104,  45  Am.  Rep.  447.) 

VINTON  vs.  BALDWIN. 

(Supreme  Court  of  Indiana,  November,  1889. J 

Action  for  commission.  The  opinion  states  the  case.  The 
defendant  had  judgment  below. 

S.  C.  Willson  and  L.  B.  Willson,  for  appellant. 

Elliott,  J.  On  the  5th  day  of  June,  1879,  the  appellee 
executed  a  written  agreement  appointing  appellant  his  agent  to 
procure  a  loan,  and  promising  to  pay  him  "for  his  services  five  per 
cent,  commission  on  the  amount  of  the  loan  obtained."  Formal 
application  was  made  for  a  loan,  the  parties  to  whom  it  was  made 
agreed  to  lend  the  money  applied  for,  the  appellant  notified 
appellee  that  liia  propoeition  for  a  loan  had  been  accepted,  and 
gave  him  a  form  of  mortgage  to  execute;  the  priper  was  taken  by 
the  appellee,  who  promised  to  cause  it  to  bo  duly  signed  and 
acknowledged.      The   day  following   the   appellant   notified    the 


Chap.  Ill  ]  ViKTON  vs.  Baldwin.  665 

appellee  that  he  had  the  money  ready  for  him,  but  the  latter  refused 
to  accept  it,  and  declined  to  take  the  loan.  The  facts  are  not  in 
dispute,  and  the  only  question  is  whether  the  court  correctly 
applied  the  law  to  them.     We  are  clear  that  the  court  erred. 

A  broker  who  is  employed  to  procure  a  loan  is  entitled  to  his 
commission  when  he  procures  a  lender  ready,  willing  and  able  to 
lend  the  money  upon  the  terms  proposed.  His  right  to  commis- 
sion does  not  depend  upon  the  contingency  of  the  applicant's 
acceptance  of  the  loan,  but  upon  his  performance  of  his  part  of  the 
contract.  The  principal  cannot  deprive  the  broker  of  his  commis- 
sion by  refusing  to  accept  the  loan  which  the  negotiations  of  the 
latter  have  resulted  in  securing.  In  Green  vs.  Lucas,  33  L.  T. 
(N.  S.)  584,  Lord  Cairns  said,  in  a  case  very  similar  to  the  pres- 
ent: '*It  appears  to  me  that  plaintiff  had  done  everything  which 
agents  in  this  kind  of  work  were  bound  to  do,  and  it  would  be  forcing 
their  liability  if  they  were  to  be  held  answerable  for  what  happened 
after.  If  the  contracts  afterward  were  to  go  off  from  the  caprice 
of  the  lender,  or  from  the  infirmity  in  the  title,  it  would  be  imma- 
terial to  the  plaintiffs.'*  Green  vs.  Reed,  3  F.  &  F.  226;  Green  vs. 
Lucas,  31  L.  T.  (N.  S.)  731.  In  principle  the  case  of  a  broker 
negotiating  a  loan  is  the  same  as  that  of  a  broker  negotiating  a  sale 
of  property,  and  in  the  latter  case  it  is  uniformly  held  that  the 
commissions  are  earned  when  a  purchaser  is  found  able  and  willing 
to  buy  on  the  terms  proposed.  In  such  cases  the  broker's  right  to 
compensation  is  held  to  accrue  when  he  has  furnished  a  purchaser, 
and  does  not  depend  upon  the  ultimate  consummation  of  the  sale. 
Lane  vs.  Albright,  49  lud.  275;  Love  vs.  Miller,  53  Id.  294,  s.  c. 
21  Am.  Rep.  192;  Reyman  vs.  Mosher,  71  Ind.  596;  Moses  vs.  Bier- 
ling,  31  N.  Y.  462;  Mooney  vs.  Elder,  56  Id.  238;  Hart  vs.  Hoff- 
man, 44  Hov/.  Pr.  168;  Pricket  vs.  Badger,  1  C.  B.  (N.  S.)  296. 

A  real  estate  or  loan  broker  may  recover  commissions,  although 
he  acts  for  both  parties;  but  it  must  appear  that  he  acted  openly 
and  fairly,  and  that  all  the  facts  were  known  to  both  principals. 
A  broker  is  regarded  as  a  middleman,  and  not  as  an  agent  in  whom 
peculiar  trust  and  confidence  are  placed.  Alexander  vs.  North- 
western, etc.  University,  57  Ind.  466;  Rowe  vs.  Stevens,  53  N.  Y. 
621;  Ruj)p  vs.  Sampson,  16  Gray,  398;  Redfidd  vs.  Tcgg,  38  N.  Y. 
212;  Barry  vs.  Schmidt,  57  Wis.  172,  46  Am.  Rep.  35.  See  Bell 
vs.  McConnell,  37  Ohio  St.  396,  41  Am.  Rep.  528  {ante,  p.  538). 

We  have  had  no  brief  from  the  appellee,  and  our  unaided  efforts 


6G6  Cases  on  Agexcy.  [Book  V 

have  not  famished  ua  with  any  reason  upon  which  the  finding  can 
be  sustained. 

Judgment  reversed. 


(42  Kansas,  664,  16  Am.  St.  Rep.  512.) 

PLANT  vs.  THOMPSON. 

f Supreme  Court  of  Kansas,  July,  1SS9.J 

Action  by  Miller  and  Thompson  against  Plant  and  wife  for  com- 
missions on  the  sale  of  re*l  estate  placed  in  their  hands  for  sale, 
and  which  the  Plants  had  sold  to  one  Kellam.  Judgment  for 
plaintiff  below. 

0.  N.  Elliott,  for  plaintiffs  in  error. 
Eazen  <&  Isenhart,  for  defendant  in  error. 

Holt,  0.  (After  disposing  of  a  point  of  practice.)  The  defend- 
ants claim  that  there  was  error  in  giving  and  refusing  instructions, 
and  that  the  verdict  is  contrary  to  the  evidence.  There  is  really 
but  little  conflict  in  the  evidence  brought  before  us.  Taking  even 
the  uncontradicted  testimony,  we  believe  the  judgment  is  correct, 
and  without  following  specifically  the  objections  of  defendants,  we 
will  give  our  reasons  for  affirming  it. 

From  the  testimony  of  Mrs.  Plant,  it  appears  that  her  attention 
was  first  called  to  Kellam  as  a  possible  purchaser  by  the  plaintiffs. 
To  be  sure,  they  entered  into  no  negotiations  with  him  for  a 
sale,  and  it  was  sold  for  a  less  price  than  that  given  the  agents. 
It  was  also  sold  by  her  without  any  aid  from  the  plaintiffs,  except 
that  her  attention  was  directed  to  Kellam  by  them.  This  view  of 
the  case  is  as  favorable  to  the  defendants  as  the  testimony  will 
justify,  and  yet,  under  the  circumstances  the  plaintiffs  were 
entitled  to  their  commission.  Tliey  introduced  the  purchaser  to 
the  seller,  and  by  tliut  means  the  sale  was  made.  In  Lh>yd  vs. 
Matthews,  51  N.  Y.  124,  in  a  case  similar  to  this  one,  the  court 
says:  **  It  is  suflicient  to  entitle  tlie  broker  to  compensation  that 
the  sale  is  effected  through  his  agency  as  its  procuring  cause  and 
if  his  communications  with  the  purchaser  were  the  cause  or  meana 


Chap.  Ill  ]  Plant  vs.  Thompson.  667 

of  bringing  him  and  the  owner  together,  and  the  sale  resulted  in 
consequence  thereof,  the  broker  is  entitled  to  recover.'* 

In  Arrington  vs.  Cary,  5  Baxt.  (Tenn.)  609,  it  is  said:  "  When 
a  broker  or  agent  is  employed  to  sell  real  estate,  and  produces  a 
person  who  ultimately  becomes  a  purchaser,  he  is  entitled  to  his 
commissions,  although  the  trade  may  be  effected  by  the  owner  of 
the  property.'' 

Also,  from  Carter  vs.  Welster,  79  111.  435,  we  quote  a  part  of  the 
opinion  which  explains  itself:  **  Plaintiff  engaged  Bruner  to 
secure  a  purchaser  for  defendant's  land,  and  according  to  the  cus- 
tom that  prevails,  Bruner  induced  Gun,  another  real  estate  agent, 
to  interest  himself  to  find  a  buyer  for  the  land.  Gun  did  mention 
the  fact  that  this  property  was  for  sale,  to  Mr.  Mears,  and  through 
the  information  thus  obtained,  Mr.  Mears,  sen.,  went  directly  to 
defendant,  and  bought  the  property  of  him.  The  effect  of  what 
plaintiff  did  was  to  present  to  defendant  a  person  who  made  an 
offer  for  the  property  that  he  was  willing  to  and  did  accept.  This 
was  all  plaintiff  undertook  to  do  *  *  *  or  all  he  had  to 
do  to  earn  his  commissions." 

In  Boyster  vs.  M'Agereney,  9  Lea,  148,  it  is  said:  *'  If  a  broker 
is  employed  to  sell  property,  and  he  first  brings  the  property  to  the 
notice  of  the  purchaser,  and  upon  such  notice  the  sale  is  effected 
by  the  owner,  the  broker  is  entitled  to  commissions." 

The  court  in  lyler  vs.  Parr,  52  Mo.  249,  speaking  by  Judge 
Wagnee,  said:  '*The  law  is  well  established  that  in  a  suit  by  a 
real  estate  agent  for  the  amount  of  his  commission,  it  is  immaterial 
that  the  owner  sold  the  property  and  concluded  the  bargain.  If, 
after  the  property  is  placed  in  the  agent's  hands,  the  sale  is  brought 
about  or  procured  by  his  advertisement  and  exertions,  he  will  be 
entitled  to  his  commissions."  See,  also,  Sussdorff  vs.  Schmidt,  55 
N.  Y.  319;  Lincoln  vs.  McClatchie,  S6  Conn.  136;  Shepherd  vs. 
Eedden,  29  N.  J.  L.  334;  Winans  vs.  Jaques,  10  Daly,  487;  Goffe 
vs.  Giison,  18  Mo.  Ap.  1;  Anderson  vs.  Cox,  16  Neb.  10;  Bell  vs. 
Kaiser,  50  Mo.  150;  Williams  vs.  Leslie,  111  Ind.  70;  Doojian  vs, 
Ives,  73  Ga.  295;  Dolan  vs.  Scanlan,  57  Cal.  261;  Armstrong  vs. 
Wann,  29  Minn.  126;  Fitch  on  Real  Estate  Agency,  119,  120. 

The  claim  of  the  plaintiffs  for  commission  is  not  affected  because 
the  defendants  saw  fit  to  sell  the  same  land  for  a  price  less  than 
they  gave  it  to  plaintiffs  to  sell.  In  this  connection,  Mrs.  Plant 
testified:  "I  thought  if  I  could  make  the  sale  myself  I  could  sell 
it  cheaper,  and  would  not  have  to  pay  commission."     The  defend- 


668  Cases  oif  Agency.  [Book  V 

anta  will  not  be  allowed  to  take  advantage  of  their  introduction  to 
the  purchaser  by  the  plaintiffs,  and  reap  the  benefits  of  the  sale 
made  to  him  in  consequence,  and  then  escape  all  liability  of  paying 
them  their  commission  because  they  sold  the  land  for  a  sum  less 
than  the  price  given  their  agents,  where  the  reduction  was  made  of 
their  own  accord.  Sfeiuart  vs.  Mather,  32  "VTis.  344;  Cock  vs. 
Emmcrling,  22  IIow.  69;  Moods  vs.  StcjiJiens,  46  Mo.  555;  Reynolds 
vs.  Tompkins,  23  W.  Va.  229;  Lincoln  vs.  McClatclue,  supra; 
Wharton  on  Agency  and  Agents,  sec.  329.  We  recommend  that 
the  judgment  be  affirmed. 

AflSrmed. 

Note. — Compare  with  preceding  case,  and  with  Sibbald  vs.  Bethlehem 
Iron  Co.,  ante,  p.  801. 


(77  Georgia,  64,  4  Am.  St.  Eep.  72.) 

CLARK  vs.  GUMMING. 

(Supreme  Court  of  Georgia,  March,  188S.) 

Action  to  recover  a  balance  alleged  to  be  due  on  a  sale  of  goods. 
Plaintiffs  had  judgment  below. 

Abbott  and  Gray,  for  the  plaintiffs  in  error. 
A.  E.  Calhoun,  for  the  defendants. 

Blandpoed,  J.  The  main  and  only  qneetion  in  this  case  is, 
whctlier  a  broker  can  bind  his  principal  by  a  contract  made  against 
the  express  instructions  and  authority  of  the  principal. 

This  court  holds  that  he  cannot  bind  his  principal  under  the 
case  put. 

A  broker  is  a  special  agent,  and  derives  his  power  and  authority 
to  bind  his  principal  from  the  instructions  given  to  him  by  his 
principal.  Code,  sees.  2194,  2196,  2184;  Story  on  Agency,  32; 
East  India  Company  vs.  Ilcnsley,  1  Esp.  Ill,  113;  Jiosenstock  vs. 
Tormey,  32  Md.  109;  Baxter  vs.  Lamont,  60  111.  237.  AViicn  dctinite 
instructions  are  given  by  the  princijial  to  the  broker  to  sell  goods 
for  him  at  a  certiiin  Bj)C'cilJed  price  for  a  certain  time  ami  day  only, 
thiu  will  not  authorize  the  broker  to  contract  and  sell  the  same 
kind  of  goods  for  his  principal  ut  a  different  and  subsequent  time 
for  the  same  price;  his  power  is   limited   by  and  ceases  with  his 


Cliap.  Ill  ]  Claek  tb.  Cumminq.  669 

instructions;  and  this  is  so,  even  though  it  had  been  usual  in  the 
course  of  dealings  between  the  broker  and  his  principal  for  the 
broker  to  continue  to  sell  at  the  prices  quoted  last  by  the  principal. 
Rosenstoch  vs.  Tormcy,  32  Md.  169,  179,  180. 

The  court  below  decided  as  we  have  here  held,  and  the  judgment 
Is  affirmed* 


(Law  Repoets,  5  Exchequeb,  169.) 

PAIELIE  vs.  FENTON. 

C  English  Court  of  Exchequer,  April,  1870.) 

Fairlie,  a  broker,  brought  this  action  to  recover  for  the  non- 
acceptance  of  cotton  sold  by  him,  as  a  broker,  to  the  defendant. 
The  contract  was  in  the  following  form:  *'Ihave  this  day  sold 
yon  on  account  of,'^  etc.,  and  was  signed  "Evelyn  Fairlie,  broker." 
Verdict  for  the  plaintiff.     Motion  for  a  non-suit,  on  leave  reserved. 

Brown,  Q.  C,  and  Mellor,  for  the  rule. 
Pollock,  Q.  C,  and  Barnard,  contra. 

Kelly,  C.  B.  The  numerous  cases  cited  to  ns  show  that  in 
certain  contracts  the  agent  may  himself  sue  as  principal;  but  in 
none  does  it  appear  that  a  broker  has  successfully  maintained  an 
action  on  a  contract  made  by  him  as  a  broker.  He  may,  no  doubt, 
frame  a  contract  in  such  a  way  as  to  make  himself  a  party  to  it 
and  entitled  to  sue,  but  when  he  contracts  in  the  ordinary  form, 
describing  and  signing  himself  as  a  broker,  and  naming  his  princi- 
pal, no  action  is  maintainable  by  him.  Though  innumerable  con- 
tracts of  this  nature  daily  take  place,  yet  no  instance  has  occurred 
within  my  own  recollection,  nor  has  any  instance  been  cited  to  us, 
where  an  action  has  been  brought  by  a  broker  describing  himself 
as  such  in  the  contract,  and  not  using  words  which  expressly  or  by 
necessary  implication  make  him  the  contracting  party.  Without 
further  arguing  the  point,  it  is  enough  to  refer  to  this  unbroken 
rule  as  the  settled  law  upon  the  subject. 

Cleasby,  B.  I  am  of  the  same  opinion.  There  is  no  doubt  a 
broker  cannot  sue;  he  has  no  authority  to  sell  in  his  own  name,  or 
to  receive  the  money,  and  has  nothing  to  do  with  the  goods.  This 
is  so  laid  down  in  Story  on  Agency,  sees.  28-34,  109.    *'  To  use  the 


670  Cases  ox  Agency.  [Book  V 

brief  but  expressive  language  of  an  eminent  judge,  'a  broker  is  one 
who  makes  a  bargain  for  another,  and  receives  a  commission  for  so 
doing/  Properly  speaking,  a  broker  is  a  mere  negotiator  between 
the  other  parties,  and  he  never  acts  in  his  own  name,  but  in  the 
names  of  tliose  who  employ  him.  ^Yhen  he  is  employed  to  buy  or 
sell  goods,  he  is  not  intrusted  with  the  custody  or  possession  of 
them,  and  is  not  authorized  to  buy  or  to  sell  them  in  his  own 
name.*'  Sec.  28.  **  So  a  broker  has  ordinarily  no  authority  virtute 
officii,  to  receive  payment  for  property  sold  by  him."  Sec.  109. 
The  distinction  between  a  broker  and  an  auctioneer  has  already  been 
pointed  out  in  argument.  My  only  doubt  has  been  whether  the 
use  of  the  words  "  I  have,"  etc.,  ought  to  be  held  to  import  a  per- 
gonal participation  in  the  contract,  the  usual  course  being  departed 
from;  but  my  opinion  is  it  ought  not. 
MAKTiif,  and  Pigott,  BB.,  concurred. 

Rule  absolute. 

Note. — See  Thompson  va.  Kelly,  ante,  p.  653,  and  note. 


Ohap.  IV  ]  Phillips  vs.  Moie.  671 


CHAPTER    IV. 

OF  FA.CTORS. 


I. 

IMPLIED    POWERS  OF   FACTOES. 


( 69  Illinois,  155.) 

PHILLIPS  vs.  MOIR. 

^Supreme  Court  of  Illinois,  September,  J87S.J 

Action  by  Moir  &  Oc,  distillers,  to  recover  from  Phillips  & 
Carmichael,  commission  merchants,  the  amount  alleged  to  have 
been  received  by  them  on  a  sale  of  plaintiffs'  wines.  Moir  &  Co., 
had  made  a  contract  for  the  future  delivery  of  200  barrels  of  wine 
to  one  Ames,  intending  to  supply  them  out  of  their  warehouse,  but 
their  warehouse  and  contents  were  burned  before  the  wines  were 
called  for.  Moir  &  Co.  then  instructed  defendants,  if  the  wines 
should  be  called  for  by  Ames  before  Moir  &  Co.  could  make  them, 
to  go  into  the  market  and  buy  and  deliver  them  on  Moir  &  Co. 'a 
account.  Ames  called  for  100  barrels  before  Moir  &  Co.  had  made 
them  and  Carmichael  went  into  the  market  and  bought  them  and 
began  to  deliver  them  at  Ames'  store  on  the  afternoon  of  the  same 
day.  Phillips  went  twice  to  the  store  to  get  his  pay,  waiting  there 
Bome  time,  but  Ames  was  not  there,  nor  any  one  except  his  porter. 

About  six  o'clock,  when  the  wines  were  substantially  all  delivered, 
Phillips  went  away  telling  the  porter  he  would  leave  the  wines  in 
his  charge  and  would  be  there  as  soon  as  he  came  down  in  the 
morning.  He  went  there  in  the  morning  but  the  wines  were  gone 
and  Ames  could  not  be  found.  It  was  found  that  part  of  the  wines 
had  been  shipped  to  Detroit  and  part  were  still  in  the  Michigan 
Central  depot.  Phillips  &  Carmichal  replevied  all  of  the  wines, 
following  up  and  recovering  those  sent  to  Detroit.  They  sold  them 
then  at  the  market  price  and  put  the  proceeds  in  the  bank.  It 
appeared,  however,  that  Ames  had  received  from  the  Michigan 
Central  railroad  company  bills  of  lading  for  the  100  barrels  of 


672  Cases  on  Agency.  [Book  V 

wine  on  the  day  following  their  delivery  at  Ames's  store  and  had 
procured  the  discount  of  drafts,  with  these  hills  of  lading  attached, 
at  the  National  Bank  of  Commerce.  Phillips  &  Carmichael  were 
defeated  in  their  replevin  snits  by  the  Bank  of  Commerce  and  they 
thereupon  paid  this  bank  the  money  they  had  received  from  the 
Bale  of  the  wines  after  replevying  them.  Notice  of  the  replevin 
Bnits  were  given  to  Moir  &  Co.  but  they  refused  to  prosecute  them. 

The  evidence  showed  that  it  was  the  universal  custom  in  Chicago, 
when  high  wines  were  sold  on  'change  on  a  given  day  to  be  deliv- 
ered on  that  day,  to  deliver  during  the  same  afternoon  to  the  pur- 
chaser, and  the  next  morning  the  necessary  papers,  consisting  of 
inspection  certificates,  government  coupons  identifying  the  wines 
and  showing  the  payment  of  the  government  tax,  the  bill  of  sale 
and  account,  are  presented  to  the  purchaser  when  he  is  required  to 
pay.  If  the  purchaser  requires  it,  the  wines  have  to  be  inspected 
on  his  premises  after  delivery.  If  he  does  not,  then  the  seller  has 
to  furnish  the  certificate  of  the  government  inspection. 

The  testimony  showed  Ames  to  have  been  in  good  credit  and 
standing  until  the  19th  of  July.  On  the  ISth,  before  making  the 
delivery,  Phillips  inquired  of  three  different  persons  as  to  the 
responsibility  of  Ames,  and  received  a  favorable  report,  and  learned 
that  each  of  the  parties  was  then  actually  delivering  him  wines. 

Messrs.  Goudy  &  Chandler  and  Messrs.  Lazurence,  Winston, 
Campbell  &  Lawrence,  for  the  appellants. 

Mr.  G.  M.  Harris,  for  the  appellees. 

Mr.  Justice  Sheldon  delivered  the  opinion  of  the  court. 

The  money  sued  for  in  this  case  was  not  that  of  the  plaintiffs, 
but  belonged  to  the  National  Bank  of  Commerce,  as  has  been 
established  by  legal  adjudication,  made  under  such  circumstances 
as  to  be  binding  upon  the  plaintiffs.  The  only  ground  of  action 
which  can  be  claimed  against  the  defendants  is,  for  the  negligent 
delivery  of  the  high  wines  to  Ames,  without  collecting  the  price,  and 
it  is  objected,  that  there  can  be  no  recovery  for  such  a  cause  of 
action  under  a  declaration  in  assumpsit  containing  the  common 
counts  only  as  in  this  case,  but  that  there  must  be  a  special  count 
thereon.  Passing  over  this  objection,  we  will  consider  the  ques- 
tion as  to  the  liability  of  the  defendants  under  any  form  of  dec- 
laration which  might  be  framed. 

The  rule  in  regard  to  factors  and  brokers  is  familiar,  that  they 
are  only  required  to  act  with  reasonable  diligence  and  care  in  their 
employment.     Story  on  Agency,  sec.  18G. 


Chap.  IV]  Phillips  vs.  Moie.  673 

The  known  usages  of  trade  and  business,  too,  enter  into  the 
engagement  of  the  agent,  and  if  he  conducts  his  business  according 
to  such  usages,  he  will  be  exonerated  from  all  responsibility.  Id. 
sec.  96. 

It  seems  impossible  on  an  examination  of  the  evidence  in  this 
record,  to  come  to  any  other  just  conclusion  than  that  Phillips  and 
Carmichael  fully  performed  the  duty  arising  out  of  their  employ- 
ment as  agents.  So  far  as  we  can  perceive,  they  used  all  the 
diligence  and  care  that  a  prudent  man  would  have  used  under  like 
circumstances  in  the  transaction  of  his  own  affairs. 

In  making  the  delivery  to  Ames  without  receiving  simultaneous 
payment,  they  were  justified  by  the  usage  of  the  particular  trade  or 
business  prevailing  in  Chicago. 

"We  see  no  pretext  of  a  ground  upon  which  to  charge  the  appel- 
lants with  a  liability  in  this  case,  except  the  one  of  a  violation  of 
orders.  There  is  some  evidence  in  the  record  tending  to  show  a 
disobedience  of  instructions. 

Moir  testifies  that,  at  the  time  he  was  in  Chicago,  on  his  way 
east,  about  the  10th  of  July — when  he  instructed  Carmichael 
how  to  act  in  the  event  of  the  wines  being  called  for  before  Moir  & 
Co.'s  wines  reached  the  market — wines  had  at  that  time  declined 
from  the  time  the  sale  had  been  made,  and  he  insisted  upon  an 
increased  margin  being  put  up;  that  it  was  the  understanding  of 
Moir  and  Wallace  that  the  margin  was  to  be  kept  good;  that,  on 
application  to  Ames  to  increase  it,  the  latter  said  he  distinctly 
understood  that  he  was  to  put  up  but  $3  as  margin,  and  declined  to 
increase  it;  that  thereupon  Moir  walked  over  to  where  Carmichael 
was  transacting  business,  and  said:  ''  Mr.  Carmichael,  this  man  is 
putting  a  different  construction  on  the  contract  from  what  I  think 
he  ought  to  put.  Don't  trust  a  dollar's  worth  of  our  property  in  his 
hands  without  getting  your  pay  for  it; "  that  Carmichael  gave  assur- 
ance to  witness  that  he  would  not.  Carmichael  positively  denies 
that  Moir  said  anything  of  the  sort. 

Phillips  swears  that,  on  the  same  day  when  Moir  was  in  Chicago 
on  his  way  east,  he  said  to  Moir,  in  case  it  was  necessary  to  buy  in 
the  wines  and  deliver  them,  that  there  was  some  little  risk  in 
delivering  wines;  that  they  did  not  know  Ames  at  all,  never  had  a 
transaction  with  him;  to  which  Moir  replied  that  we  must  be  as 
careful  as  possible;  that  that  was  about  the  sum  and  substance  of 
the  conversation.  Moir  denied  this  conversation. 
43 


674:  Cases  on  Agency.  [Book  V 

Here  is  not  a  preponderance  of  testimony  for  the  plaintiffs  to 
recover  upon.  The  reason,  too,  assigned  by  Moir  for  giving  the 
direction  did  not  truly  exist,  for  the  contract,  in  plain  words,  only 
required  a  margin  of  $3  per  barrel,  which  had  been  put  up,  and 
there  was  no  just  cause  for  censure  or  suspicion  of  Ames  on  that 
ground. 

But  even  if  Moir  did  say  to  Carmichael  what  the  former  testifies, 
we  cannot  admit  that  there  would  be  ground  for  a  recovery. 

What  would  have  been  meant  and  understood  by  Moir's  direc- 
tion not  to  trust  a  dollar's  worth  of  his  property  in  Ames'  hands 
without  getting  pay  for  it?  It  certainly  should  not  have  been 
taken  in  its  literal  meaning,  that  Moir  was  to  get  his  pay  for  each 
barrel,  or  each  dray  load  of  high  wines,  as  it  was  delivered.  That 
would  be  impossible.  Phillips  and  Carmichael  had  no  right  to 
demand  payment  until  they  had  delivered  the  wines,  had  them 
inspected  on  the  premises,  if  required  by  the  purchaser,  and 
furnished  the  inspection  certificate  and  coupons.  The  article  was 
bulky,  and  had  to  be  delivered  in  successive  dray  loads  from  the 
distance  of  a  mile.  Phillipps  went  twice  to  Ames'  store  during 
the  afternoon  while  the  delivery  was  going  on,  in  order  to  protect 
Moir  &  Co's  interest,  remaining  there  the  second  time  until  about 
six  o'clock,  when  the  wines  were  nearly  all  delivered. 

Up  to  this  point  it  cannot  be  said  that  Phillips  and  Carmichael 
had  failed  in  their  duty,  or  departed  from  their  instructions,  if 
they  ever  received  any.  Not  meeting  with  Ames  at  that  time, 
what  was  then  the  duty  of  Phillips?  It  would  have  been  well-nigh 
impossible  for  him  at  that  time  to  withdraw  the  wines  from  Ames' 
Btore  and  place  them  elsewhere  in  safety.  But,  could  he  have  done 
80,  it  would  have  been  imprudent  to  remove  the  wines  in  due 
regard  to  Moir  &  Co's  interests,  so  far  as  Phillips  could  then  judge. 
Ames  at  that  time  was  in  good  credit,  he  might  claim  the  right  to 
insist  on  the  established  custom  in  regard  to  the  sale  and  delivery 
of  high  wines.  There  was  nothing  in  the  contract  of  sale  made 
by  Moir  &  Co.  with  Ames  to  take  the  sale  from  the  operation  of 
the  custom. 

Phillips  could  not  know  but  that  Ames  would  require  to  have 
the  wines  in.^pected  on  his  premises,  as  he  was  entitled  to  have  done, 
by  the  custom.  lie  wiis  entitled  by  the  custom,  to  have  the  certifi- 
cate of  inspection  and  the  government  coupons  identifying  the 
wines  and  showing  the  payment  of  the  tax,  delivered  to  him  with 


Chap.  IV  ]  Phillips  vs.  Moib.  G75 

the  bill.  The  custom  was  not  to  deliver  these  papers,  and  not  to 
pay  for  the  wines,  until  the  morning  after  their  delivery.  If  then, 
Phillips,  on  that  night  of  the  18th,  had  removed  the  wines,  it 
would  have  been,  as  he  might  reasonably  suppose,  at  the  hazard  of 
discharging  Ames  from  his  contract,  and  of  Moir  &  Co.  losing  the 
margins  of  6G00,  which  they  had  put  up,  and  their  9  cents  per 
gallon,  the  difference  between  the  price  at  which  they  sold  and  that 
at  which  they  had  purchased. 

The  only  course  for  Phillips  to  take,  with  a  view  to  protect  the 
interests  of  Moir,  would  seem  to  be  the  one  he  did  take. 

He  placed  the  wines  in  the  care  of  the  porter  in  the  store,  to  be 
kept  until  the  next  morning,  and  the  next  morning  he  was  there 
for  the  payment.     In  the  meantime  the  wines  had  been  abstracted. 

The  loss  was  not  attributable  to  the  pecuniary  condition  of  Ames, 
but  to  the  fact  that  he  was  a  dishonest  man. 

The  special  instruction  claimed  as  having  been  given  by  Moir  as 
before  remarked,  could  not  have  been  intended  to  be  taken  literally. 
The  language  of  it  requires  construction,  and  it  must  have  a  reason- 
able construction. 

The  usages  of  a  particular  trade  or  business  are  properly  admissible 
for  the  purpose  of  interpreting  the  powers  given  to  an  agent. 
Story  on  Agency,  sec.  77. 

The  only  reasonable  construction  to  be  placed  on  the  language 
of  such  instruction,  under  the  circumstances,  would  seem  to  be 
that  Phillips  &  Carmichael  were  not  to  give  Ames  any  indulgence, 
but  to  insist  on  prompt  payment  according  to  the  existing  usage 
and  custom;  that  they  were  not  to  trust  Ames  with  the  possession 
of  the  wines  beyond  the  customary  course  of  delivery,  and  except 
to  that  degree  that  it  was  necessary  to  trust  him  in  order  to  make 
a  good  delivery  and  enable  Moir  &  Co.  to  collect  their  purchase 
money  and  save  the  forfeit  of  the  margins  which  they  had  put  up. 
To  have  required  anything  more,  we  incline  to  think  the  direction 
should  have  been  more  specific,  showing  an  unmistakable  intention 
to  depart  from  the  known  usage  and  custom  of  the  particular 
trade,  and  the  particular  wherein  the  variation  should  be.  The 
appellants  did  not  trust  the  wines  to  Ames  without  payment  any 
further  than  was  in  strict  accordance  with  the  known  usage  and 
custom  of  the  business,  and  than  seemed  necessary  under  the  cir- 
cumstances, and  under  a  contract  which  was  of  appellee's  own 
making. 


676  Cases  on  Aqeijcy.  [  Book  V 

"We  regard  the  finding  of  the  conrt  below  as  unwarranted  by  the 
evidence,  and  the  judgment  must  be  reveiBed. 

Judgment  reversed. 


(77  Maine,  563.) 

PINKHAM  vs.  CEOOKER. 

(Supreme  Judicial  Court  of  Maine,  December,  1SS5.J 

Assumpsit  on  an  account  annexed  for  sixteen  sacks  of  wool — 
two  thousand  two  hundred  sixty-eight  and  one-half  pounds  at 
twenty-seven  cents  a  pound — six  hundred  twelve  dollars  and  fifty 
cents;  also  for  money  had  and  received. 

The  wool  was  sold  by  the  defendant  in  his  own  name  with  other 
wool  belonging  to  him  to  the  Sebec  "Woolen  Company  on  sixty 
clays'  time  and  the  purchaser  failed  before  the  payment  was  due 
and  paid  twenty-five  cents  on  a  dollar.  The  opinion  states 
other  material  facts. 

Chas.  P.  Stetson  and  John  F.  Rolinson,  for  the  plaintifL 
John  Varney,  for  the  defendant. 

Peters,  0.  J.  The  defendant,  as  a  factor,  no  instructions  being 
imposed  upon  him,  sold  the  plaintiff's  wool  at  the  plaintiff's  risk, 
upon  credit,  the  purchaser  failing  before  the  debt  became  due.  The 
defendant  exercised  due  care  in  taking  the  risk,  if  he  was  justified 
in  so  selling  the  goods.  Does  the  law  authorize  a  factor  to  sell  his 
principal's  goods  on  credit? 

It  was  held  in  an  early  case  in  this  state  that  a  factor  has  such 
authority.  Greely  vs.  Barllett,  1  Maine,  172,  10  Am.  Dec.  54.  It 
was  the  doctrine  of  the  Massachusetts  court  when  our  own  state  was 
a  portion  of  that  commonwealth.  Ooodenow  vs.  Tyler,  7  Mass.  36, 
5  Am.  Dec.  22.  It  is  the  general  doctrine.  Story  on  Ag.  §§  60, 
110  and  cases  there  cited. 

We  do  not  think  it  necessary  for  the  defendant  to  show  that  it 
is  a  usage  of  trade  to  sell  wool  upon  credit.  Of  course,  if  the  sale 
was  made  in  defiance  of  a  usage  which  forbids  a  sale  on  credit,  the 
defense  fails.  But  it  is  fair  to  presume  that  a  usage  exists  which 
permits  such  a  sale  unless  the  contrary  be  shown.  Wo  know  that,  as 
far  as  most  descriptions  of  goods  are  concerned,  it  is  not  unusual  to 


Chap.  IV]  PiNKHAM  vs  Crocker.  677 

sell  on  credit.  The  factor  often  sells  his  ov.'n  goods  on  credit,  and 
it  is  to  be  presumed  that  he  is  clothed  with  as  much  discretion 
■when  he  sells  goods  belonging  to  others.  It  is  not  nnreasonable  to 
suppose  that  the  principal  would  have  sold  the  goods  on  credit  had 
the  sale  been  made  by  him  without  the  aid  of  a  factor.  Should  it 
be  necessary,  however,  to  appeal  to  the  evidence  for  the  defendant's 
justification,  we  should  not  hesitate  to  declare  that,  in  our  opinion, 
such  a  usage  as  the  defendant  invokes  is  affirmatively  proved. 

The  plaintiff  contends  that  the  defendant  made  himself  per- 
sonally liable  for  the  goods  because  he  was  guilty  of  negligence  in 
not  seasonably  apprising  the  plaintiff  of  the  circumstances  of  the 
sale,  and  in  not  using  more  diligence  than  he  did  use  to  collect  the 
debt.  The  evidence  does  not  support  the  contention.  If  a  factor 
exposes  his  principal  to  risk  of  loss  by  any  want  of  information 
which  the  principal  is  entitled  to  from  him,  or  by  any  inattention 
to  his  principal's  interests,  he  is  responsible  for  all  the  natural  con- 
sequences of  his  neglect.  The  law  requires  diligence  and  a  lively 
interest  on  his  part  in  his  employer's  affairs. 

But  what  better  action  could  have  been  taken  than  was  taken  by 
the  defendant  after  the  purchaser  failed?  His  own  wool  was 
covered  by  the  same  sale.  He  took  the  same  percentage  in  settle- 
ment with  the  purchaser  that  all  other  creditors  received.  The 
plaintiff  evidently  intended,  after  the  purchaser  failed,  to  cast  the 
loss  upon  the  defendant,  if  he  could,  and  he  seems  to  have  been 
unwilling  to  participate  in  the  responsibility  of  any  settlement  of 
the  debt  either  by  word  or  act.  The  cases  cited  upon  the  brief 
submitted  for  the  plaintiff  are  not  applicable  to  these  facts.  The 
case  cited  upon  tlie  brief  for  the  defense,  Gorman  vs.  Wheeler,  10 
Gray,  362,  is  in  point. 

The  plaintiff  is  entitled  to  recover,  under  the  money  count,  the 

amount  which  the  defendant  received  from  the  purchaser  on  his 

account. 

Defendant  defaulted  accordingly. 


678  Cases  on  Agency.  [Book  V 

(11  Howard,  209.) 

WARNER    vs.    MARTIN. 

(^Supreme  Court  of  the   United  States,   Deceviber,   1850.) 

Martin  &  Franklin  consigned  tobacco  to  their  factor  Esenwein 
for  sale.  The  latter  became  financially  embarassed  and  went  to 
Europe,  leaving  his  affairs  in  charge  of  his  clerk.  The  latter 
turned  out  to  Warner,  in  satisfaction  of  a  claim  he  had  against 
Esenwein,  a  large  quantity  of  the  tobacco  received  from  Martin  & 
Franklin.  Warner  sold  part  of  it  to  Heald,  Woodward  &  Co., 
who  bought  in  good  faith,  not  knowing  where  or  how  Warner  got 
it.  The  action  was  by  Martin  &  Franklin  for  an  accounting. 
Decree  accordingly. 

Mr.  Fallon,  for  appellants. 

Mr.   Wharton,  for  appellees. 

Wayne,  J.  (After  stating  the  facts.)  The  exact  questions 
raised  by  the  record  are,  whether  or  not  the  transfer  of  the  tobacco 
to  Warner  divested  the  plaintiff's  ownership  of  it;  and  whether  or 
not  Warner's  sale  of  a  part  of  it  to  Ileald,  Woodward  «&  Co.,  for  a 
full  consideration,  without  any  knowledge  upon  their  part  of  the 
plaintiff's  interest  when  they  bought  from  Warner,  gave  to  them  a 
property  in  it. 

Warner's  account  of  dealings  with  Esenwein  we  believe  to  be 
true.  In  his  answer,  however,  he  puts  his  right  to  retain  the 
tobacco  upon  a  footing  not  applicable  to  it.  He  says  he  bought 
without  knowing  that  Martin  &  Franklin  had  any  interest  in  the 
tobacco,  and  that  he  believed  Esenwein  was  the  owner.  His  infer- 
ence practically  was,  that  he  might  therefore  set  off  against  the 
price  his  liability  for  the  notes  which  he  had  lent  to  Esenwein  as  a 
debt  due  by  Esenwein  to  him.  This  can  only  be  done  upon  the 
principle  that,  where  two  persons  equally  innocent  are  prejudiced 
by  the  deceit  of  a  third,  the  person  who  has  put  trust  and  confi- 
dence in  the  deceiver  should  be  the  loser.  He  discloses  in  his 
answer  his  knowledge  of  a  fact  which  takes  him  out  of  any  such 
relation  to  the  plaintiff.  It  is  his  knowledge  at  the  time  of  the 
delivery  of  the  tobacco  to  him,  of  the  failure  of  Esenwein. 

In  all  of  those  cases  in  which  it  has  been  ruled  that  the  buyer 
who,  at  the  time  of  the  sale,  knows  nothing  of  the  relation  between 


Chap.  IV]  Warner  vs.  Maetin.  679 

the  factor  with  whom  he  deals  and  the  principal  by  whom  that 
factor  has  been  employed,  is  protected  by  the  law,  in  case  of  a 
misadventure  occurring  by  the  default  of  the  factor,  it  is  admitted 
that  the  risk,  which  a  principal  runs,  through  the  inadvertence  or 
misconduct  of  his  agent,  may  be  avoided,  by  the  purchaser  having 
notice,  at  any  time  before  the  completion  of  the  purchase  or  deliv- 
ery of  the  goods,  of  the  agent's  commission.  Peake,  177.  Among 
the  instances  which  the  laAV  terms  notice  enough  for  such  a  pur- 
pose is  the  insolvency  of  the  factor  known  to  the  buyer.  Eastcott 
vs.  Milward,  7  Term  Eep.  361;  Ibid.  3G6. 

Warner  says  in  his  answer,  that,  at  the  time  he  made  his  pur- 
chase, "  the  insolvency  of  Esenwein  was  believed.''  Those  are  his 
words,  and  according  to  all  that  class  of  cases  asserting  the  princi- 
ple under  which  his  answer  puts  him,  such  knowledge  was  sufficient 
to  entitle  the  plaintiff  to  avoid  the  sale. 

Again,  a  transfer  to  him,  by  way  of  sale,  by  the  clerk  of  Esenwein, 
of  property  trusted  to  the  latter  as  a  factor,  could  not  pass  the  title 
or  right  in  it  from  the  real  owner. 

It  made  no  difference  that  Caprano  had  been  left  to  transact 
Esenwein's  business  while  he  was  in  Europe.  A  factor  cannot 
delegate  his  trust  to  his  clerk.  The  law  upon  this  point  is  well 
settled.  It  has  been  repeatedly  ruled.  The  first  example  in  the 
first  paragraph  of  Paley  on  Agency,  upon  the  ''execution  of 
authority,"  is,  if  an  agent  be  appointed  to  sell,  he  cannot  depute 
the  power  to  a  clerk  or  under  agent,  notwithstanding  any  usage  of 
trade,  unless  by  express  assent  of  the  principal. 

The  utmost  relaxation  of  the  rule,  Potestas  delegata  non  potest 
delegare,  in  respect  to  mercantile  persons,  is,  that  a  consignee  or 
agent  for  the  sale  of  merchandise  may  employ  a  broker  for  the 
purpose,  when  such  is  the  usual  course  of  business.  Trueman  ws. 
Loder,  11  Adolph.  &  Ell.  589.  Or  where  the  usual  course  of  the 
management  of  the  principal's  concerns  in  the  employment  of  a 
Bub-agent  has  been  pursued  for  a  length  of  time,  and  been  recog- 
nized by  the  owners  of  property,  they  will  be  taken  to  have  adopted 
the  acts  of  the  sub-agent  as  the  acts  of  the  agent  himself.  Blove 
vs.  Sutton,  3  Meriv.  237;  Combes' case,  9  Co.  75-77;  Roll.  Abr.  330; 
Polliser  vs.  Ord,  Bunb.  166.  Lord  Eldon,  in  Coles  vs.  Trecothick, 
9  Ves.  jr.  236,  reprobates  the  notion,  that,  if  an  auctioneer  is 
authorized  to  sell,  all  his  clerks  are,  during  his  absence,  in  conse- 
quence of  any  such  usage  in  that  business. 

It  was  ruled  by  the  Master  of  the  Rolls  in  Blove  vs.  Sutton,  3 


CSO  Cases  ox  Agexcy.  [Book  V 

Meriv.  237,  that  an  agreement  for  a  lease,  evidenced  only  by  a 
memorandum  in  writing,  entered  in  the  book  of  an  autliorized 
agent,  signed  by  his  clerk  and  not  by  the  agent  himself,  was  not  a 
suflBcient  agreement  in  writing,  it  not  being  signed  by  an  agent 
properly  authorized,  notwithstanding  the  entry  was  shown  in  evi- 
dence to  have  been  approved  by,  and  that  it  was  made  under  the 
immediate  direction  of,  the  authorized  agent,  and  in  the  usual 
course  of  the  business  of  his  office.  A  factor  cannot  delegate  his 
employment  to  another,  so  as  to  raise  a  privity  between  that  other 
and  his  principal.  S>'lly  vs.  Rathhone,  2  Maule  &  Selw.  299; 
Cochran  vs.  IrJam,  Ibid.  301.  The  reason  of  the  rule  in  all  these 
mercantile  agencies  is,  that  it  is  a  trust  and  confidence  reposed  in 
the  ability  and  integrity  of  the  person  authorized.  An  agent 
ordinarily,  and  without  express  authority,  or  a  fair  presumption  of 
one,  growing  out  of  the  peculiar  transaction  or  the  usage  of  trade, 
has  not  the  power  to  employ  a  sub-agent  to  do  the  business,  with- 
out the  knowledge  or  consent  of  his  principal.  The  agency  is  a 
personal  trust  for  a  ministerial  purpose,  and  cannot  be  delegated, 
for  the  princijoal  employs  the  agent  from  the  opinion  he  has  of 
his  personal  skill  and  integrity,  and  the  latter  has  no  right  to  turn 
his  principal  over  to  another,  of  whom  he  knows  nothing.  2 
Kent's  Comm.  633. 

No  usage  of  trade  anywhere  permits  a  factor  to  delegate  to  his 
clerk  the  commission  trusted  to  himself.  In  this  case,  there  was  a 
transfer  of  the  plaintiU's  property  to  ^yarner,  by  a  clerk  of  their 
factor.  He  knew  when  it  was  done  that  he  was  giving  their  prop- 
erty to  a  creditor  of  his  employer  in  payment  of  his  debt;  and  both 
himself  and  the  purchaser  knew  that  Esenwein  was  in  failing  cir- 
cumstances, or,  as  Warner  expresses  it,  *'  that  his  insolvency  was 
believed."  It  must  be  admitted  that  such  a  transfer  passed  no 
property  in  the  thing  transferred,  and  that  it  may  be  reclaimed  by 
the  owner,  as  well  from  any  person  to  whom  it  has  been  sold  by  the 
first  buyer  as  from  himself.  It  is  the  case  of  property  tortiously 
taken  fiom  the  owner  or  his  agent,  without  any  fault  of  the  owner, 
and  as  such  cannot  take  away  his  right  to  it. 

On  eitlicr  of  the  grounds  already  mentioned,  the  plaintiff  would 
be  entitled  to  recover  from  the  defendants  in  this  case.  But  there 
is  a  third,  which  shall  be  stated  in  connection  with  other  points 
respecting  princi]jals  and  factors,  which  it  will  not  be  out  of  place 
to  notice.  A  factor  or  agent  who  has  power  to  sell  the  produce  of 
his  principal  has  no  power  to  aHoct  the  property  by  tortiously 


Chap.  IV]  Waknee  vs.  Martin.  681 

pledging  it  as  a  security  or  satisfaction  for  a  debt  of  his  own,  and  it 
is  of  no  consequence  that  the  pledgee  is  ignorant  of  the  factor's  not 
being  the  owner.  Pater  son  vs.  Task,  Str.  1178;  Maans  vs.  Hender- 
son, 1  East,  337;  Keivson  vs.  Thornton,  6  East,  17;  2  Smith,  207; 
McComlie  vs.  Davies,  6  East,  538,  7  East,  5;  Daubigney  vs.  Duval, 
5  T.  E.  604;  1  Manle  &  Selw.  140,  147;  2  Stark.  539;  Guichard 
vs.  Morgan,  4  Moore,  36;  2  Brod.  &  Bingh.  639;  2  Ves.  Jr.  213. 

When  goods  are  so  pledged  or  disposed  of,  the  principal  m ay- 
recover  them  back  by  an  action  of  trover  against  the  pawnee,  with- 
out tendering  to  the  factor  what  may  be  due  to  him,  and  without 
any  tender  to  the  pawnee  of  the  sum  for  which  the  goods  were 
pledged  (DauMgney  vs.  Duval,  5  T.  R.  604);  or  without  any 
demand  of  such  goods  (6  East,  538;  12  Mod.  514);  and  it  is  no 
excuse  that  the  pawnee  was  wholly  ignorant  that  he  who  held  the 
goods  held  them  as  a  mere  agent  or  factor  {Martini  vs.  Coles,  1 
Maule  &  Selw.  140),  unless,  indeed,  where  the  principal  has  held 
forth  the  agent  as  the  principal  (6  Maule  &  Selw.  147).  But  a 
factor  who  has  a  lien  on  the  goods  of  his  principal  may  deliver 
them  over  to  a  third  person,  as  a  security  to  the  extent  of  his  lien, 
and  may  appoint  such  person  to  keep  possession  of  the  goods  for 
him.  In  that  case,  the  principal  must  tender  the  amount  of  the 
lien  due  to  the  factor,  before  he  can  be  entitled  to  recover  back 
the  goods  so  pledged.  Eartop  vs.  Hoare,  Stra.  1187;  Daubigney  vs. 
Duval,  5  T.  R.  604;  6  East,  538;  7  East,  5;  Chitty's  Com.  Law, 
193.  So  a  sale  upon  credit,  instead  of  being  for  ready  money, 
under  a  good  authority  to  sell,  and  in  a  trade  where  the  usage  is  to 
sell  for  ready  money  only,  creates  no  contract  between  the  owner 
and  the  buyer,  and  the  thing  sold  may  be  recovered  in  an  action 
of  trover.  Paley,  Principal  and  Agent,  109;  12  Mod.  514.  Under 
any  of  these  irregular  transfers,  courts  of  equity  (as  is  now  being 
done  in  this  case)  will  compel  the  holder  to  give  an  account  of  the 
property  he  holds. 

But  it  was  said,  though  a  factor  may  not  pledge  the  merchandise 
of  his  princii^al  as  a  security  for  his  debt,  he  may  sell  to  his 
creditor  in  payment  of  an  antecedent  debt.  No  case  can  be  found 
affirming  such  a  doctrine. 

It  is  a  misconception,  arising  from  the  misapplication  of  correct 
principles  to  a  case  not  belonging  to  any  one  of  them.  The  power 
of  the  factor  to  make  such  a  sale,  and  the  right  of  the  creditor  to 
retain  the  property,  has  been  erroneously  put  upon  its  being  the 
usual  course  of  business  between  factors  to  make  a  set-off  of  bal- 


68d  Cases  on  Agency.  [Book  V 

ances  as  they  may  exist  in  favor  of  one  or  the  other  of  them  against 
the  price  of  subsequent  purchases  in  their  dealings.  The  difference 
between  such  a  practice  and  a  sale  for  an  antecedent  debt  must  be 
obvious  to  every  one  when  it  is  stated.  In  the  one  the  mutual  deal- 
ing between  mercantile  persons  who  buy  and  sell  on  their  own 
account,  and  who  also  sell  upon  commission  for  others,  is  according 
to  the  well-known  usage  of  trade.  Its  convenience  requires  that 
such  a  practice  shall  be  permitted.  But  it  must  be  remembered  it 
is  an  allowance  for  the  convenience  of  trade,  and  for  a  readier  set- 
tlement of  accounts  between  factors  for  their  purchases  from  each 
other  in  that  character.  It  does  not,  however,  in  any  instance, 
bind  a  principal  in  the  transfer  of  merchandise,  if  there  has  been  a 
departure  from  the  usages  of  trade,  or  a  violation  of  any  principle 
regulating  the  obligations  and  rights  of  principal  and  factor. 

Again,  it  has  been  supposed  that  the  right  of  a  factor  to  sell  the 
merchandise  of  his  principal  to  his  own  creditor,  in  payment 
of  an  antecedent  debt,  finds  its  sanction  in  the  fact  of  the 
creditor's  belief  that  his  debtor  is  the  owner  of  the  merchandise, 
and  his  ignorance  that  it  belongs  to  another;  and  if  in  the 
last  he  has  been  deceived,  that  the  person  by  whom  the  delin- 
quent factor  has  been  trusted  shall  be  the  loser.  The  principle 
does  not  cover  the  case.  When  a  contract  is  proposed  between 
factors,  or  between  a  factor  and  any  other  creditor,  to  pass 
property  for  an  antecedent  debt,  it  is  not  a  sale  in  the  legal 
sense  of  that  word  or  in  any  sense  in  which  it  is  used  in  reference 
to  the  commission  which  a  factor  has  to  sell.  See  Berry  vs. 
Williamson,  8  Howard,  495. 

It  is  not  according  to  the  usage  of  trade.  It  is  a  naked  transfer 
of  property  in  payment  of  a  debt.  Money,  it  is  true,  is  the  con- 
sideration of  such  a  transfer,  but  no  money  passes  between  the  con- 
tracting parties.  The  creditor  pays  none,  and  when  the  debtor 
has  given  to  him  the  property  of  another  in  release  of  his  obliga- 
tion, their  relation  has  only  been  changed  by  his  violation  of  an 
agency  which  society  in  its  business  relations  cannot  do  witliout, 
which  every  man  has  a  right  to  use,  and  which  every  person  under- 
taking it  promises  to  discharge  with  unbroken  fidelity.  When 
such  a  transfer  of  property  is  made  by  a  factor  for  his  debt,  it  is  a 
departure  from  tiie  usage  of  trade,  known  as  well  by  the  creditor 
as  it  is  by  the  factor. 

It  is  more;  it  is  the  violation  of  all  tliat  a  factor  contracts  to  do 
with  the  property  of  his  principal.     It  has  been  given  to  him  to 


Chap.  IV]  Warker  vs.  Martin.  683 

Bell.  He  may  sell  for  cash,  or  he  may  do  so  upon  credit,  as  may  be 
the  usage  of  trade.  A  transfer  for  an  antecedent  is  not  doing  one 
thing  or  the  other.  Both  creditor  and  debtor  know  it  to  be  neither. 
That  their  dealing  for  such  a  purpose  will  be  a  transaction  out  of  the 
usage  of  the  business  of  a  factor.  It  does  not  matter  that  the 
creditor  may  not  know,  when  he  takes  the  property,  that  the 
factor's  principal  owns  it;  that  he  believed  it  to  be  the  factor's  in 
good  faith.  His  dealing  with  his  debtor  is  an  attempt  between 
them  to  have  the  latter's  debt  paid  by  the  accord  and  satisfaction 
of  the  common  law.  That  is,  when,  instead  of  a  sale  for  a  price,  a 
thing  is  given  by  the  debtor  to  the  creditor  in  payment,  in  which 
we  all  know  that,  if  the  thing  given  is  the  property  of  another, 
there  will  be  no  satisfaction.  It  is  the  dation  en  payement  of  the 
civil  law  as  it  prevails  in  Louisana,  which  is,  when  a  debtor  gives, 
and  the  creditor  receives,  instead  of  money,  a  movable  or  immov- 
able thing  in  satisfaction  of  the  debt. 

Courts  of  law  and  courts  of  equity,  in  a  proper  case  before  either, 
will  look  at  such  a  transaction  as  one  in  which  both  principal  and 
creditor  had  been  deceived  by  the  factor,  so  far  as  the  deceit  is  con- 
cerned; but  it  will  also  be  remembered  in  favor  of  the  principal, 
that  the  creditor  has  acquired  the  principal's  property  from  his 
factor,  with  the  creditor's  knowledge,  out  of  the  usual  course  of 
trade,  and  will  reinstate  him  in  his  former  relation  to  his  debtor, 
rather  than  that  the  creditor  should  be  permitted  to  keep  the  prop- 
erty of  another,  who  is  altogether  without  fault,  in  payment  of  his 
debt. 

As  to  a  factor's  power  to  bind  his  principal  by  a  disposition  of 
his  goods,  the  common  law  rule  is,  **  that,  to  acquire  a  good  title 
to  the  employer's  property  by  purchasing  it  from  his  agent,  such 
purchase  must  have  been  either  in  market  overt  and  without 
knowledge  of  the  seller's  representative  capacity,  or  iv^m.  an  agent 
acting  according  to  his  instructions,  or  from  one  acting  in  the 
usual  course  of  his  employment,  and  whom  the  buyer  did  not 
know  to  be  transgressing  his  instructions,"  or  that  he  had  not  such 
notice  as  the  law  deems  equivalent  to  raise  that  presumption. 
**The  reason  of  this  is  clear,  for  unless  the  transaction  took  place 
bona  fide  in  market  overt  (in  which  case  a  peculiar  rule  of  law  in 
England  steps  in  for  its  protection),  an  agent  selling  without 
express  authority  must,  that  his  acts  may  be  supported,  have  sold 
under  an  implied  one.  But  an  implied  one  thereby  always 
empowers  the  person  authorized  to  act  in  the  usual  course  of  hia 


CS4  Cases  on  Agenct.  [  Book  V 

employment;  consequently,  if  he  sells  in  an  nnnsnal  mode,  he 
conld  have  no  implied  authority  to  srpport  his  act,  and,  as  he  had 
DO  express  one,  his  sale  of  conrse  falls  to  the  ground."  Smith's 
Mercantile  Law,  111,  112. 

The  defendants  are  not  within  the  compendious  summary  just 
Btatcd.  There  has  been  a  transfer  of  property,  which  was  con- 
signed to  a  factor  for  sale,  by  his  clerk,  to  a  creditor  of  his  employer, 
who  knew  his  debtor  to  be  in  failing  circumstances,  just  as  well  afl 
the  clerk  himself  did;  and  of  property,  too,  which  the  clerk  knew 
to  be  the  property  of  the  plaintiff,  and  which  the  creditor  bargained 
for  knowingly  out  of  the  usual  course  of  trade.  Nor  should  we 
omit  to  say  that  Esenwein's  opinion  and  disapi)roval  of  what  had 
been  done  by  his  clerk  with  his  princij)ar8  tobacco  are  significantly 
disclosed  by  the  fact,  that,  upon  his  return  from  Europe,  he 
redeemed  so  much  of  it  as  had  been  assigned  to  Mr.  Conolly  by  his 
clerk  in  payment  of  a  debt,  and  sold  and  remitted  the  proceeds  to 
his  principals. 

By  the  common  law,  the  transfer  of  the  plaintiff's  tobacco  to 
Warner  cannot  be  maintained.  He  is  responsible  to  them  for  the 
value  of  so  much  of  it  as  was  not  transferred  by  him  to  Hcald, 
Woodward  &  Co.  Heald,  Woodward  &  Co.  are  responsible  for  so 
much  of  it  as  Warner  transferred  to  them,  because  '\Varner,  having 
no  property  in  it,  could  not  convey  any  to  them.  But  Warner  is 
answerable  to  them  for  that  amount,  and  he  is  replaced  for  the 
whole  as  a  creditor  of  Eseuwieu,  just  as  he  was  before  the  transac- 
tion occurred.  Aiiirmed. 


(126  MASSAcnusETTS,  183.) 

DOLAN  vs.  THOMPSON. 

(Supreme  Judicial  Court  of  Massachusetts,  January,  1S79.) 

Action  of  tort  for  malicious  prosecution.  Plaintiff  had  consigned 
goods  to  the  defendants,  who  were  factors,  nndcr  an  agrceiuent  by 
which  the  latter  were  to  advance  him  money  from  time  to  time, 
charge  him  interest  thereon  at  a  certain  rate,  sell  the  goods  at  the 
market  price,  charge  a  certain  commission  for  selling,  and  after 
deducting  advances,  interest  and  commissions,  to  i)ay  him  the  bal- 
ance,  or  if,   upon  scttlomcnt,  after  all  the  goods  were  sold,  ho 


Ohap.  IV]  DoLAN  vs.  Thompson.  ^«6 

owed  them,  he  was  to  pay  it.  Defendants  made  large  advances 
to  the  plaintiff  on  account  of  goods  not  sold,  and  after  Beveral 
months  sued  him  to  recover  and  attached  his  goods.  They  after- 
wards discontinued  the  action  npon  selling  goods  enough  to 
reimburse  them.  This  was  the  malicious  prosecution  complained 
of.    Judgment  below  for  defendants. 

/.  W.  Richardson  and  /.  W.  Keith,  for  the  plaintiff. 
R.  M.  Morse,  Jr.,  and  /.  //.  Hardy,  for  the  defendants. 

SouLB,  J.  The  plaintiff  cannot  maintain  his  action  unless  the 
evidence  would  justify  a  finding  by  the  jury  that  the  suit  which  is 
charged  to  have  been  malicious  was  instituted  without  probable 
cause  by  the  defendants.  The  plaintiff  contends  that  by  the  terms 
of  the  contract  between  the  parties  the  defendants  were  to  wait 
until  all  the  goods  consigned  to  them  had  been  sold,  before  calling 
on  him  for  repayment  of  moneys  advanced  to  him;  and  if  this 
were  bo,  it  would  be  plain  that  there  was  no  cause  of  action  against 
him.  But  we  do  not  so  interpret  the  contract.  The  agreement 
was  oral,  and,  as  testified  to,  contains  only  a  specification  of  certain 
of  the  rights  and  duties  of  principal  and  factor,  and  does  not  in 
terms,  nor  by  implication,  take  away  from  the  factor  any  rights 
which  he  would  have  had  but  for  the  agreement.  When  it  is 
intended  to  change,  in  any  particular,  the  well  established  rights 
between  such  parties,  it  must  be  done  by  an  agreement  which 
clearly  points  to  that  result;  otherwise,  it  will  be  presumed  that 
their  dealings  are  governed  by  the  rules  of  law  ordinarily  applicable 
to  dealings  of  that  nature.  Accordingly,  the  defendants,  having 
advanced  largely  to  the  plaintiff  on  account  of  goods  not  sold,  and 
which  had  been  on  hand  for  several  months,  were  entitled  to  recover 
of  the  plaintiff  the  balance  of  account  in  their  favor  when  the  suit 
was  begun.  They  had  the  right  to  look  to  the  goods  in  their  hands 
as  security,  and  the  further  right,  in  the  absence  of  an  agreement 
to  the  contrary,  to  sue  for  the  amount  due  them.  Beckwith  vs. 
Siiley,  11  Pick.  (Alass.)  482;  Upham.*ht.  Lefavour,  11  Mete.  (Mass.) 

174. 

Exceptions  overruled. 


6S6  Cases  on  Agency.  [Book  V 

(103  United  States,  352.) 

INSURANCE  COMPANY  vs.  KIGER. 

C  United  States  Supreme  Court,  October,  1880.) 

On  the  19th  of  March,  1877,  Basil  G.  Kiger,  a  planter  in  Miss- 
issippi, consigned  to  Aiken  &  Watt,  his  factors  in  New  Orleans, 
one  hundred  and  ninety-six  bales  of  cotton,  with  instructions  not 
to  sell,  but  to  hold  for  further  directions  and  better  prices.  The 
cotton  reached  New  Orleans  March  21,  and  was  stored  by  Aiken  & 
Watt  in  the  cotton-press  of  Saml.  Boyd  &  Co.  Aiken  &  Watt 
had  no  pecuniary  interest  whatever  in  the  cotton,  and  Kiger,  the 
consignor,  was  not  indebted  to  them.  On  the  contrary,  they  were 
largely  indebted  to  him.  On  the  26th  of  March,  Aiken  &  Watt 
borrowed  of  the  Mechanics'  and  Traders*  Insurance  Co.  14,500,  for 
which  they  gave  their  notes  to  the  company,  payable  in  forty  days, 
at  eight  per  cent,  interest,  eecured  by  a  cotton-press  receipt  of 
Boyd  &  Co.,  of  which  the  following  is  a  copy: 

*'  Nevt  Orleans,  March  26,  1877. 

**  Received  from  Aiken  &  Watt  the  following  deccribed  property, 
to-wit:  one  hundred  bales  cotton,  marked  [K],  ex.  Pargoud, 
March  21,  1877.  Shipper's  press.  (Printed  indorsement  in  the 
body  of  the  receipt:)  '  the  within  cotton  will  not  be  delivered  except 
on  the  return  of  this  receipt  to  the  press,  properly  indorsed.' 
Deliverable  to  the  Mechanics'  and  Traders'  Ins.  Co.  or  order. 

''Sam.  Boyd  &  Co." 

Indorsement  on  the  back  of  the  receipt  printed: 

•*  Deliver  to or  order  the  within  described  property.     The 

above  order  is  accepted,  and  the  property  is  transferred  to  

"Sam.  Boyd  &  Co." 

Afterwards,  on  the  3d  of  April,  Aiken  &  Watt  borrowed  $2,500 
more  from  the  company,  and  gave  a  similar  press  receipt  fur  uinety- 
aix  bales  as  security.  The  cotton  embraced  in  these  receipts  was 
that  which  belonged  to  Kiger. 

Before  the  maturity  of  these  notes  Aiken  &  Watt  failed.  The 
notes  were  protested  for  non-payment  when  due,  and  the  makers 
were  adjudicated  bankrupts,  June  IG,  1877. 

On  the  18th  of  April,  1877,  Kiger  brought  this  suit  against  Boyd 
&  Co.,  to  recover  the  possession  of  his  cotton.     It  was  delivered  to 


Chap.  IV]  Insurance  Co.  vs.  Kigeb.  687 

him  under  the  writ  which  was  issued,  he  giving  bond  according  to 
law  to  return  it  in  case  of  judgment  against  him  to  that  effect. 
Afterward  the  insurance  company  was  called  into  the  suit  by  Boyd 
&  Co.,  and  made  a  defendant  by  Kiger.  The  insurance  company 
answered,  setting  up  its  claim  to  the  property.  Upon  the  trial, 
the  foregoing  facts  appearing,  the  jury  w^ere  instructed  to  return  a 
verdict  in  his  favor  against  the  company. 

To  reverse  the  judgment  rendered  on  that  verdict,  the  case  is 
now  here  by  writ  of  error. 

Mr.  2  liomas  Hunton,  for  the  plaintiff  in  error. 

Mr.  Joseph  P.  Hornor,  Mr.  W.  S.  Benedict,  and  Mr.  Thomas 
J.  Semmes,  contra. 

Mr.  Chief  Justice  Waite,  after  stating  the  facts,  delivered  the 
opinion  of  the  court. 

There  are  two  questions  in  this  case:  1.  "Whether  the  insurance 
company  can  hold  the  cotton  as  against  Kiger;  and  2,  whether,  if  it 
cannot,  Boyd  &  Co.  are  liable  for  the  amount  for  which  their 
receipts  were  pledged. 

1.  As  to  Kiger.  Before  the  act  of  1876  it  was  settled  by  numer- 
ous decisions  in  Louisiana  that  a  factor  could  not  pledge  for  his 
own  debts  the  property  of  his  principal.  Stetson  vs.  Gurney,  17 
La.  166;  Hadivin  vs.  Fisk,  1  La.  Ann.  43-74;  Miller  vs.  Schneider 
<&  Zulerlier,  19  Id.  300;  Young  vs.  Scoft  &  Caqe  and  Cavaroc,  25 
Id.  313.  The  act  of  1876  does  not,  as  it  seems  to  us,  materially 
enlarge  this  power,  so  far  as  the  facts  of  this  case  are  concerned. 
It  makes  warehouse  receipts  the  representatives  of  property  in 
store,  and  provides  for  their  use  to  borrow  money  on;  but  the 
implication  is  clear  that  their  use  in  that  way  by  a  factor  for  more 
than  the  value  of  his  interest  in  the  property  would  be  wrongful 
and  invalid  against  the  owner.  This  we  do  not  understand  to  be 
disputed  by  the  counsel  for  the  plaintiff  in  error.  His  claim  is 
that  there  was  in  this  case  no  pledge,  but,  '*  as  the  effect  of  the 
stipulation  in  the  press  receipts,'^  **an  absolute  transfer  of  the 
legal  title  to  the  insurance  company  by  parties  in  possession  having 
the  absolute  control  of  the  property,  and  the  security  was  thus  taken 
to  enable  the  insurance  company  to  sell  the  cotton  and  reimburse 
themselves  if  the  debt  was  not  paid.'' 

The  transaction  between  the  parties  was  certainly  not  a  sale,  and 
in  the  answer  of  the  company  it  is  distinctly  stated  that  the  cotton 


688  Cases  on  Ageijot.  [Book  V 

was  delivered  into  the  possession  of  the  company  to  be  held  aa 
security  for  the  payment  of  the  notes  given  for  the  money  borrowad. 
Undoubtedly  the  possession  of  the  receipts  was  equivalent  to  the 
possession  of  the  property,  but  the  title  which  the  company 
acquired  was  such  as  grew  out  of  its  contract  v.ith  the  factors. 
That  clearly  was  a  pledge  and  nothing  more.  There  was,  first, 
the  cotton;  second,  the  debt  for  the  money  borrowed;  and,  third, 
the  delivery  of  the  property  into  the  possession  of  the  creditor,  to 
be  held  as  security  for  the  debt.  These  are  all  the  elements  of  a 
pledge,  and  fix  the  rights  of  the  parties.  Aikin  &  Watt  were  the 
pledgors,  but  as  they  were  only  factors  and  had  no  interest  in  the 
property  as  against  Kiger,  the  owner,  their  pledge  was  wrongful 
and  invalid  as  to  him.  The  pledge  was  by  a  factor  of  the  property 
of  his  principal,  in  which  he  had  no  interest  whatever,  as  security 
for  his  own  debt. 

2.  As  to  Boyd  &  Co.  They  were  simply  warehonsemen.  Their 
duty  under  the  law  was  not  to  issue  receipts  until  they  had  the 
property  actually  in  store,  and  not  to  deliver  the  property  until  the 
receipts  were  surrendered  for  cancellation.  They  did  have  the 
property  in  store  when  they  gave  the  receipts,  and  as  soon  as  it  was 
taken  from  them  by  judicial  process  they  notified  the  insurance 
company,  and  upon  that  notice  the  company  is  now  here  asserting 
its  title.  This  is  a  substantial  compliance  with  their  obligation 
not  to  deliver  without  a  surrender  of  the  receipt.  There  is  no  pre- 
tence of  fraud  or  collusion,  and  we  think  it  would  be  a  surprise  to 
warehousemen  to  be  told,  that  when  they  issued  their  receipts  for 
property  in  store  they  became  not  only  responsible  as  custodians  of 
the  property,  but  guarantors  of  the  title  to  the  assignees  of  their 
receipts.  Such  a  rule  would  make  it  necessary  for  a  warehouse- 
man, before  giving  a  receipt,  not  only  to  ascertain  whether  he  had 
the  property  actually  in  store,  but  whether  the  title  of  the  bailor 
was  valid  and  unincumbered.  Certainly  this  could  not  have  been 
in  contemplation  when  warehouse  receipts  were  made  by  statute 
negotiable  and  to  some  extent  evidence  of  ownership.  The  duty  of 
the  warehouseman  is  performed  when  he  gets  the  property  into  his 
own  possession  before  he  issues  the  receipt  and  transfers  that  pos- 
sesriion  when  demanded  to  the  lawful  holder  of  the  receipt. 

In  this  case  the  liability  of  Boyd  &  Co.  is  just  what  it  would 
have  been  if  the  company  had  put  the  cotton  in  store  and  taken  a 
receipt  to  its  own  order.  The  fact  that  Aiken  &  Watt  originally 
itored  the  property  is  a  matter  of  no  importance  so  fur  as  Buyd  & 


Chap.  IV]  Insurance  Co.  vs.  Kiger.  689 

Co.  are  concerned.  The  receipt  in  the  hands  of  the  company 
represented  tlio  cotton  stored  by  Aiken  &  Watt,  and  gave  the  com- 
pany the  same  rights  it  would  have  had  if  the  cotton,  instead  of 
the  receipt,  had  been  handed  over.  The  company  got  by  the 
receipt  such  interest  in  the  cotton  as  Aiken  &  Watt  could  by  their 
pledge  convey,  and  that  is  all  Boyd  &  Co.  agreed  to  deliver  on  the 
return  of  their  receipt.  Boyd  &  Co.  cannot,  as  against  the  com- 
pany, say  they  never  had  the  cotton,  or  that  they  did  not  promise 
to  deliver  it  on  the  return  of  their  receipt  by  the  lawful  holder. 
They  received  the  actual  possession  of  the  property  from  Aiken  & 
Watt,  and  that  possession  they  agreed  to  deliver  to  the  insurance 
company  when  called  on.  This,  as  has  just  been  seen,  they  have 
in  legal  eHect  done,  and  the  rights  of  the  parties  in  this  case  are 
to  be  determined  precisely  as  tliey  would  be  if  the  company  had  got 
the  cotton  from  Boyd  &  Co.,  on  the  surrender  of  the  receipts,  and 
had  afterwards  been  sued  by  Kiger  for  its  possession. 

Judgment  affirmed. 

Note.— See  Allen  vs.  St.  Louis  Bank,  120  U.  S.  20. 


II. 

DUTY  TO   OBEY   INSTRUCTIONS,* 


(27  Federal  Keporter,  273.) 
TALCOTT  vs.  CHEW. 

(^United  States  Circuit  Court,  Southern  District  of  Georgia, 
November,  1S85.J 

Plaintiff  sued  to  recover  upon  an  account  due  to  him  as  factor 
from  defendants.  Defense  i)itcr  alia,  damages  incurred  by  the 
alleged  failure  of  the  plaintiff  to  sell  (J40  bales  of  cotton  for  future 
delivery.  The  case  was  referred  to  an  auditor  who  reported  in 
plaintiff's  favor,  for  a  part  only  of  his  claim.     Both  parties  excepted. 

Franh  H.  Miller,  and  CMsolm  S  Erwin,  for  plaintiff. 

H.  Clay  Foster,  and  Lester  &  Ravend,  for  defendants. 

'  See,  also,  Phillips  vs.  Moir,  ante,  67i. 
44 


coo  Cases  on  Agexcy,  [Book  V 

Speer,  J.  (After  stating  the  facts.)  The  plaintiff  excepts 
because  the  anditor  declined  to  give  judgment  for  the  full  amount 
of  the  account  stated;  because  of  a  variance  between  the  plea  of 
set-oif  and  the  proof  submitted  thereunder;  and  because  the 
credits  were  allowed.  The  material  grounds  of  exception  made 
by  defendants  are:  First,  that  the  auditor  erred  in  finding  any- 
thing, because  the  account  sued  on  was  not  an  account  stated;  and 
that  the  account  was  not  proven  by  any  competent  or  sufficient 
proof;  Second,  that  the  auditor  erred  in  not  finding  for  the 
defendants;  that  the  auditor  should  have  disallowed  all  commiss- 
ions because  the  plaiutiH  was  an  agent  employed  to  sell  the  cot- 
tons of  the  defendants,  that  he  took  several  lots  of  the  same  on 
his  own  account  or  sold  to  himself  and  thus  forfeited  his  com- 
missions as  a  factor;  Third,  that  the  auditor  erred  in  finding  that 
the  plaintifi  was  not  obliged,  by  his  contract  with  the  defendants, 
when  instructed  so  to  do,  to  sell  future  contracts  against  the  lot  of 
640  bales  of  cotton  which  had  been  already  received  on  consign- 
ment by  the  plaintiff;  Fourth,  and  that  the  auditor  also  erred  in 
finding  that  the  defendants,  by  their  subsequent  dealings,  had 
ratified  this  refusal  to  sell  for  future  delivery. 

On  the  hearing  it  was  agreed  by  counsel  that  the  issues  involved 
should  be  determined  by  the  court  without  the  intervention  of  a 
jury. 

I  do  not  regard  the  exceptions  of  the  plaintiff  as  material.  It 
is  true  that  the  plaintiff's  claim  must  properly  be  considered  an 
account  stated.  On  September  20,  1881,  the  account  sued  on, 
being  a  general  account  current,  was  inclosed  in  a  letter  from  the 
plaintiff  to  the  defendants  with  the  request  that  the  latter  would 
remit  the  balance  of  $^3, 028. 44.  On  the  twenty-second  of  Septem- 
ber, 1881,  the  defendants  acknowledged  the  receipt  of  the  state- 
ment, and  in  reply  wrote  that  they  were  very  much  pressed  with 
business,  but  in  a  few  days  would  look  over  the  statement  carefully 
and  give  their  views  on  the  matter.  On  the  third  of  October,  1881, 
tlie  plaintiff  drew  a  sight  draft  for  the  amount  of  the  balance,  and 
on  the  same  day,  through  his  agent,  wrote  again:  "  We  have  noth- 
ing from  you  in  regard  to  your  account  sales  for  cotton.'*  On  the 
fourteenth  of  October,  the  plaintiff  again  comiilaincd  that  he  had 
received  no  statement  of  errors  in  the  account,  and  on  the  20th 
the  plaintiff  telegraphed  defendants  to  send  statements  of  any 
objections  they  have  to  the  account.     It  a])pcar8  from  the  evidence 


Chap.  IV]  Talcott  vs.  Chew.  691 

that  commnnication  by  mail  conld  be  had  between  Atignsta  and 
New  York  in  two  days.  See  Wiggins  vs.  Burhham,  10  Wall.  (XJ. 
S.)  129. 

An  account  rendered  and  not  objected  to  within  a  reasonable  time, 
is  to  be  regarded  as  admitted  by  the  party  charged  as  prima  facie, 
correct.  The  principle  which  lies  at  the  found:ition  of  evidence  of 
this  kind  is  that  the  silence  of  the  party  to  whom  the  account  is 
sent  warrants  the  inference  of  an  admission  of  its  correctness.  The 
inference  is  more  or  less  strong  according  to  the  circumstances  of 
the  case.  It  may  be  repelled  by  showing  facts  which  are  inconsist- 
ent with  it;  as  that  the  party  was  absent  from  home,  suffering 
from  illness,  or  expected  shortly  to  see  the  other  party,  and 
intended  and  preferred  to  make  his  objections  in  person.  Other 
circumstances  of  a  like  character  may  be  readily  imagined.  It  will 
not  do,  however,  for  a  commission  merchant  to  say  that  his  busi- 
ness prevents  him  from  looking  over  an  account  contracted  in  the 
course  of  that  business;  nor  is  it  the  custom  of  merchants  who 
intend  to  pay  an  account  to  say:  "  We  will  look  over  it  in  a  few 
days,  and  then  give  you  our  views  on  it.'*  Unless  objected  to 
within  a  reasonable  time  (and  what  constitutes  such  reasonable 
time  is  a  question  of  law,)  an  account  rendered  becomes  an  account 
Btated,  and  cannot  be  impeached  except  for  fraud  or  mistake. 
Oil  Co.  vs.  Van  Etten,  107  U.  S.  334;  1  Story  Eq.  sec.  526;  Lockwood 
vs.  Thome,  11  N.  Y.  173,  62  Am.  Dec.  81;  s.  c.  18  N.  Y.  288; 
Stenton  vs.  Jerome,  54  N.  Y.  484. 

The  supreme  court  of  the  United  States,  on  this  general  subject, 
have  held  that  the  failure  of  a  party  receiving  a  letter  to  reply 
within  a  reasonable  time  after  he  receives  it  was  to  raise  a  presump- 
tion that  he  approved  of  what  had  been  done,  so  far  as  the  letter 
informed  him;  and,  in  the  absence  of  anything  to  rebut  that  pre- 
sumption, he  was  to  be  regarded  as  having  consented  thereto. 
Feildvs.  Farrington,  10  Wall.  141.  The  supreme  court  of  Georgia 
have  adopted  this  ruling,  (McLendon  7's.  Wilson,  52  Ga.  48,)  and 
reaffirmed  it.    {Bray  vs.  Gunn,  53  Ga.  148). 

A  stated  account,  however,  is  not  conclusive;  but  when  it  is 
admitted  in  evidence  the  burden  of  showing  its  incorrectness  is 
thrown  on  the  other  party.  He  may  prove  fraud,  omission,  and 
mistake,  and  in  these  respects  he  is  in  no  wise  concluded  by  the 
admissions  implied  from  his  silence  after  it  was  rendered.  Wiggins 
vs.  Burl-Jiam,  10  Wall.  132;  Perkins  vs.  Hart,  11  Wheat.  (U.  S.) 
256.     It  follows,  therefore,  that  the  auditor  was  justified  in  giving 


692  Cases  on  Agency.  [Book  V 

to  the  acconnt  stated  the  weight  of  exidence  prima  facie.  He  was 
also  justified  in  correcting  an  error.  Bray  vs.  Gunn,  svpra.  I 
am  of  the  opinion,  therefore,  that  the  auditor  had  the  evidence 
before  him  to  support  his  finding;  nor  do  I  think  that  his  reduc- 
tions of  the  phiintifE's  demand  were  improper;  nor  that  the  defendant 
can  justly  complain  of  the  plaintiff's  refusal  to  hold  his  cotton  to 
warrant  him  in  making  sales  for  future  delivery. 

The  plaintiff  furnished  the  money  with  which  to  buy  the  cotton, 
and  while,  ordinarily,  factors  are  generally  bound  to  obey  all  orders 
of  their  principal,  yet  when  they  have  made  large  advances,  or 
incurred  expenses  on  account  of  consignments,  the  principal  can- 
not, by  any  subsequent  orders,  control  their  right  to  sell  at  such  a 
time  as,  in  the  exercise  of  a  sound  discretion  and  in  accordance  with 
the  usage  of  trade,  they  may  deem  best  to  secure  indemnity  to  thcm- 
Belves,  and  to  promote  the  interests  of  the  consignor;  they  acting, 
of  course,  in  good  faith,  and  with  reasonable  skill.  Feild  vs.  Far- 
riiigton,  10  Wall.  144. 

It  is  true  that  a  factor  or  other  agent  who  is  guilty  of  fraud  or 
gross  negligence  in  the  conduct  of  his  principal's  business  forfeits 
all  claims  to  commissions  or  other  compensation  for  his  services 
{Fordyce  vs.  Pepper,  16  Fed.  Rep.  516);  and,  ordinarily,  a  factor 
who  takes  commissions  from  his  principal,  who  employs  him  to  sell, 
would  violate  his  contract,  should  he  also  take  commissions  from 
the  person  to  whom  he  sells  {Dos  Passos,  Brok.  224;  Boston  vs. 
CliJJ'ord,  68  111.  67,  18  Am.  Rep.  549;  Raisin  vs.  Clark,  41  Md. 
158,  20  Am.  Rep.  66;  Ly7ich  vs.  Fallon,  11  R.  I.  311,  23  Am.  Rep. 
458;  Scrihner  vs.  Collar,  40  Mich.  375,  29  Am.  Rep.  541);  nor 
could  an  agent  employed  to  sell  be  himself  the  purchaser  (Code, 
Ga.  2186.) 

Here,  however,  the  plaintiff  was  not  strictly  a  factor.  It  is  very 
clear  from  the  evidence  that  he  was  a  general  commission  mcnthant; 
that  his  principal  dealings  were  in  dry  goods;  tliat  ho  dealt  largely 
with  spinning  mills  and  spinners,  supi)lying  them  with  cotton, 
which  he  frequently  sold  to  them  on  time.  He  was  neither  a  cot- 
ton factor,  a  cotton  broker,  nor  a  member  of  a  cotton  exchange  in 
New  York  city;  and  it  was  clearly  understood  by  the  dcfundanta 
that  because  of  the  peculiar  facilities  that  the  plaintiff  had  to  dis- 
pose of  the  cotton  to  Fj)inner8,  they  would  pay  him  a  commission; 
and  they  not  only  understood  that  he  was  receiving  commissions 
from  the  spinners,  but  they  tacitly  acnuiesced. 

The  double  agency  was  therefore  clearly  understood  by  both  par- 


Chap.  IV]  Talcott  vs.  Chew.  693 

ties.  The  plaintiil  furnished  the  means,  not  only  to  pay  for  the 
cotton,  but  frequently  to  give  time  to  the  spinners  who  bought 
from  him.  This  was  legitimate.  llice  vs.  Wood,  113  Mass.  133, 
18  Am.  Eop.  459  fa7ife,  p.  12);  Scnbncr  vs.  Collar,  supra;  Fritz 
vs.  Fi)inerty,  10  Cent.  L.  Jour.  487.  In  fact,  all  the  cotton  pur- 
chased was  the  property  of  the  plaintiff,  and  the  defendants  profits 
were  to  be  made  by  the  use  of  his  money;  and  it  is  not  to  be  sup- 
posed that  he  would  sell  the  cotton  for  less  than  its  market  value. 
On  the  review  of  the  whole  case,  I  am  satisfied  that  there  is  no 
error  in  the  report  of  the  auditor.  It  is  therefore  approved,  and 
judgment  directed  for  the  amount  of  his  finding. 

Note. — See  Bell  vs.  McConnell,  ante,  p.  538;   Vinton  vs.  Baldwin,  ante, 
p.  664;  Bice  vs.  Wood,  ante,  p.  13,  as  to  double  commissions. 


(84  Alabama,  512.) 

LEHMAN  vs.  PRITCHETT. 

f Supreme  Court  of  Alabama,  June,  1SS8.J 

Action  by  Lucy  B.  Pritchett  against  Lehman,  Durr  &  Co.,  as 
commission  merchants  and  warehousemen,  to  recover  for  the  loss 
of  five  bales  of  cotton  which  defendants  kept  on  hand,  after  being 
instructed  to  sell,  until  they  were  destroyed  by  fire.  Judgment 
for  plaintiff.     Defendants  appeal. 

Tompkins,  Landon  S  Troy,  for  appellants. 

Walls  S  Son,  contra. 

Clopton,  J.,  delivered  the  opinion  of  the  court: 

Appellee  seeks  by  the  action,  which  is  brought  against  appellants, 
as  commission  merchants  and  warehousemen,  to  recover  for  the 
loss  of  five  bales  of  cotton  which  they  failed  to  sell  in  a  reasonable 
time  after  having  been  so  instructed,  and  which  they  kept  on  hand 
until  they  were  destroyed  by  fire.  The  rulings  of  the  court,  in 
charging  the  jury,  raise  the  question  whether  the  defendants  are 
liable  for  the  value  of  the  cotton  if  they  failed  to  sell  it  after 
receiving  instructions  a  sufficient  time  to  enable  them  to  sell 
before  the  cotton  was  burned,  though  the  warehouse  receipts  were 
not  sent  to   them,  and  they  did  not  demand  them,  nor  notify 


694  Cases  on  Agekcx.  [Book  V 

plaintiff  that  they  would  not  sell  without  them.  In  October,  1885, 
tenants  of  plaintiff  stored  in  her  name  the  cotton  in  controversy  in 
the  Alabama  warehouse,  and  took  three  sejiarate  receipts  for  the 
same,  which  were  turned  over  to  her  agcut.  During  the  same 
season  the  plaintiff  shipped  and  consigned  for  sale  to  the  defend- 
ants, as  commission  merchants,  fourteen  other  bales,  the  receipts 
for  which  were  kept  by  them,  and  were  in  their  possession  when 
the  instructions  to  sell  were  given.  This  cotton  the  defendants 
sold.  A  fair  and  just  consideration  of  the  instructions  of  the 
court  given  and  refused,  require  us  to  assume  that  defendants  were 
directed  to  sell  the  cotton  in  dispute,  and  also  that  the  warehouse 
receipts  were  not  delivered  to  them.  The  business,  duties,  and 
liabilities  of  factors  and  commission  merchants  are  substantially 
the  same,  the  terms  being  ordinarily  used  interchangeably.  A 
factor,  or  commission  merchant,  as  generally  defined,  is  an  agent 
employed  to  sell  goods  or  merchandise  consigned  or  delivered  to 
him  by  or  for  his  principal,  for  reward,  usually  a  commission. 
The  features  which  mainly  distinguish  a  factor  from  a  broker  are, 
the  former  is  entrusted  with  the  possession,  disposal  and  control  of 
the  property,  and  may  sell  in  his  own  name,  binding  the  principal, 
and  the  latter  does  not  usually  have  possession,  disposal,  and 
control,  and  should  sell  in  the  name  of  his  principal.  While,  as  a 
general  rule,  a  commission  merchant  is  bound  to  obey  the  instruc- 
tions of  his  principal,  the  right  to  give  instructions  to  sell,  and  the 
correlative  duty  to  obey,  depend  on  the  existence,  in  fact  and  in 
law,  of  the  relation  from  which  the  right  and  duty  arise  to  the 
particular  party  by  whom  the  instructions  are  given.  The  relation 
is  only  created  when  the  proi)erty  is  consigned  or  received,  or  is 
placed  at  the  disposal  or  under  the  control  of  the  commission  mer- 
chant to  be  sold.  "Whenever  he  receives  the  property  without 
fpecial  directions  as  to  the  time,  mode,  or  price,  the  duty  is 
devolved  to  use  due  diligence  to  sell  in  a  reasonable  time;  but  the 
duty  is  not  devolved  until  he  receives  such  possession  and  power  of 
disposal  and  control  as  will  enable  him  to  make  an  effectual  sale — 
to  deliver  possession,  and  to  pass  title. 

In  Perkins  vs.  State,  50  Ala.  151,  it  is  said:  "A  commission 
merchant  we  understand  to  be  one  who  receives  goods,  chattels,  or 
merchanfliso  for  Bale  or  exchange.  Possession  of  the  thing  to  bo 
sold  or  exchanged,  and  authority  to  sell  or  exchange  or  otliorwiso 
dispose  of  it,  for  a  compensation  to  be  paid  by  the  owner,  or 
derived  from  the  disposition,  are  essential  to  his  character." 


Chap.  IV]  Lekman  vs.  Peitchett.  G95 

It  follows  that,  if  the  cotton  had  heen  stored  in  plaintiff's  name 
in  a  warehouse  with  which  defendants  had  no  connection,  the 
instrnctiona  to  sell  would  have  imposed  no  duty  to  ohoy  until  the 
warehouse   receipts   were  delivered,  so  as   to  authorize   them  to 
demand  and  receive  possession — constructive  possession.     It  is  not 
contended  that  the  cotton  was  consigned  to  the  defendants,  or  that 
it  was  in  their  possession;  but  it  is  insisted  that  they  had  posses- 
sion, and  power  to  dispose  and  control  it,  by  reason   of  their 
connection  with  the  warehouse  in  which  it  was  stored.     The  con- 
tention is  rested  on  the  following  facts:    The  defendants  were 
commission  merchants  doing  business  as  partners  under  the  firm 
name  of  Lehman,  Durr  &  Co.     The  partners  also  owned  individ- 
ually  the   Alabama  warehouse,    and    carried    on    the   warehouse 
business  as  partners  under  the  firm  name  of  "  The  Alabama  Ware- 
house Company.''    The  business  and  transactions  of  two  partner- 
ships were  kept  separate  and  distinct,  but  daily  reports  of  the 
cotton  stored  in  the  warehouse  were  made  to  Lehman,  Durr  &  Co. 
The  defendants  were  sued  as  partners  composing  the  latter  firm. 
In  a  suit  against  them  as  such  partners,  a  recovery  cannot  be  had, 
founded  on  a  breach  of  duty  and  their  liability  as  warehousemen. 
Each  partnership  has  a  distinctive  personality,  and,  for  all  the 
purposes  of  suit,  must  be  regarded  the  same  as  if  the  individual 
members  were  different  persons.     As  at  common  law  a  bailee  may 
safely  restore  the  subject  of  bailment,  or  account  for  the  proceeds 
thereof  to  the  bailor,  when  not  notified  of  an  adverse  right  or 
claim    by  a    stranger,  it    may  be   that  the   defendants   having 
received  instructions  to  sell  from  the  bailor  in  one  of  their  partner- 
ship capacities,  and  having  possession  and  control  of  the  cotton  as 
bailees  in  the  other,  it  would  have  been,  independent  of  statute, 
their  duty  to  obey  the  instructions.     This  question,  however,  we 
do  not  decide.     The  statutes  intervene  to  qualify  and  restrict  the 
common  law  right  and  duty  of  warehousemen.     They  provide  that 
warehousemen,  on  receiving  property  for  safe  keeping,  shall  give  a 
receipt  therefor  to  the  person  from  whom  received.     Such  receipt 
is    made    transferable  by  indorsement,  unless  the  words  ''not 
negotiable  "  are  plainly  written  or  stamped  thereon;  and,  if  these 
words  are  not  plainly  written  or  stamped  on  the  receipt,  the  ware- 
houseman is  prohibited  to   deliver  the  property  except  on  the 
delivery  and  cancellation  of  the  receipt,  unless  it  has  been  lost  or 
destroyed.     Code  188G,  §§  1174-1178,     Without  the  delivery  and 
cancellation  of  the  receipts,  the  Alabama  Warehouse  Company  was 


696  Cases  on  Age^'CY.  [Book  V 

without  right  or  authority  to  deliver  the  cotton  to  the  plaintiff, 
and  equally  to,  or  on  the  order  of,  Lehman,  Durr  &  Co.,  as  her 
agents  and  commission  merchants.  The  cotton  not  being  con- 
signed to  Lehman,  Durr  &  Co.,  and  the  receipts  not  having  been 
sent  or  delivered,  they  had  no  power  to  acquire  possession,  man- 
agement, disposal,  or  control  of  the  cotton,  and,  if  they  had  sold 
it,  could  not  have  safely  delivered  it  to  the  vendee.  Even  if  the 
warehouse  business  had  been  carried  on  by  Lehman,  Durr  &  Co., 
as  a  branch  and  part  of  their  partnership  business,  and  not  by  a 
different  partnership  and  under  a  different  name,  they  could  not, 
as  warehousemen,  have  rightly^  and  safely  delivered  the  cotton 
except  on  delivery  and  cancellation  of  the  receipts.  They  might, 
at  their  option,  have  sold  it,  and  incurred  the  risk  of  the  receipts 
having  been  transferred,  and  of  liability  to  the  transferee;  but  the 
law  does  not  devolve  the  duty  to  sell,  in  contravention  of  its  pro- 
visions, until  the  receipts  are  delivered  to  them  as  commission 
merchants.  To  fasten  on  them  a  liability  for  a  breach  of  their 
duty  as  commission  merchants  there  must  be  something  which  is 
an  equivalent  of  a  consignment  or  delivery  of  the  cotton  for  sale. 

The  court  also  instructed  the  jury  that  the  defendants,  if  liable, 
were  liable  for  the  value  of  the  cotton.  The  warehouse,  with  the 
cotton,  was  burned  March  10,  1886.  It  is  undisputed  that  the  lire 
was  accidental,  and  was  not  caused  by  any  negligence  of  the 
defendants,  or  of  the  Alabama  Warehouse  Company.  There  are 
classes  of  cases  in  which  it  was  ruled  that  the  defendant  was  liable 
for  the  value  of  the  property,  though  it  may  have  been  destroyed 
by  some  subsequent  accident  with  which  the  act  of  the  defendant 
had  no  legal  connection.  In  such  cases,  so  far  as  our  examination 
has  extended,  the  liability  was  rested  on  the  character  in  which 
the  defendant  was  acting,  or  some  act  done,  by  which  responsibility 
for  the  value  of  the  property  was  incurred  before  its  destruction; 
such  as  that  he 'was  a  common  carrier,  and  an  insurer  against  such 
accidents,  as  in  Railroad  Co.  vs.  McUuirc,  79  Ala.  395,  or  he  had 
Interfered  with  the  property  so  as  to  constitute  his  act  a  conversion, 
or  BO  as  to  authorize  the  jdaiutil!  to  elect  to  treat  the  property  as 
the  defendant's,  and  claim  payment  therefor.  If  it  be  conceded 
that  it  was  the  duty  of  the  defendants  to  sell  the  cotton  in  a  reason- 
able time  after  receiving  instructions,  its  subsequent  loss  by  fire 
tannot  be  regarded  as  the  natural  and  proximate  consequence  of 
delay  in  selling,  "according  to  the  usual  course  of  things."  The 
burning  of  the  cotton  was  an  accidental  or  collateral  injury,  not 


Chap.  IV  ]  Lehman  vs.  Peitohett.  697 

usually  following  as  tlie  result  of  such  delay.  If  the  defendants 
were  in  duty  bound  as  commission  merchants  to  sell  the  cotton  in 
a  reasonable  time,  and  they  failed  to  do  so,  they  would  be  liable 
for  any  injury  naturally  resulting  therefrom,  but  not  for  injury 
suffered  from  an  extraordinary  or  fortuitous  cause,  having  no  rela- 
tion to  the  delay  except  that  it  was  coteraporaneous.  Baughtery 
vs.  Teleqrapli  Co.,  75  Ala.  1G8,  51  Am.  Rep.  435;  liailroad  Co.  vs. 
Lockart,  79  Ala.  315;  Burton  vs.  Holley,  29  Ala.  318,  G5  Am.  Dec. 
401. 

Counsel  cite  and  rely  on  Pattison  vs.  Wallace,  1  Stew.  48,  where 
it  was  held  that  a  ginner  who  received  cotton  under  an  agreement 
to  pick  and  bale  it  in  preference  to  all  other  cotton,  but  who 
giuued  the  cotton  of  other  persons,  leaving  plaintiU's  cotton 
unginned,  and  the  gin  house,  with  the  cotton,  was  subsequently 
burned,  was  liable  for  the  value  of  the  cotton,  though  the  burning 
was  without  fault  on  his  part.  Of  that  case  it  may  be  said  that  it 
stands  almost,  if  not  quite,  alone,  is  opposed  by  the  overwhelming 
weight  of  authority,  and  has  been  departed  from  in  principle  by 
this  court  in  all  the  later  cases.  It  does  not  seem  to  have  been 
much  considered,  and  the  principle  therein  asserted  is  assumed 
without  citation  of  authority  or  argument  to  sustain  it.  We  cannot 
extend  it  to  other  or  similar  cases,  in  which  there  is  no  fraud,  bad 
faith,  or  negligence  causing  the  injury. 

In  Ashe  vs.  De  Rossett,  5  Jones  (N.  C),  299,  72  Am.  Dec.  552, 
the  owner  of  a  rice  mill  agreed  with  a  planter  that,  if  the  latter 
would  bring  his  rice  to  the  mill,  it  should  have  priority  in  being 
beat,  according  to  a  turn  to  which  the  owner  was  entitled.  It  was 
not  beat  according  to  the  agreement,  but  was  kept  in  the  mill,  and 
before  being  beat  the  mill  and  rice  were  consumed  by  fire.  Pear- 
son, J.,  says:  "Its  being  burnt  was  an  accident  unlooked  for  and 
unforeseen,  and  can  in  no  sense  be  considered  as  having  been 
caused  by  the  fact  that  it  was  not  beat  in  the  turn  promised  by  the 
defendant's  intestate.    Consequently  the  damages  were  too  remote.'* 

In  Daniels  vs.  Ballantine,  23  Ohio  St.  532,  13  Am.  Eep.  264,  the 
defendant  contracted  to  tow  the  plaiutilf's  barge  by  a  steam  tug 
from  Bay  City,  Mich.,  to  Buffalo,  N.  Y.  The  voyage  was  volun- 
tarily suspended  and  delayed  after  having  been  commenced,  and 
after  being  resumed,  a  storm  was  encountered,  by  which  the  barge 
was  lost.  It  was  held  "that  the  defendants,  by  the  mere  fact  of 
the  delay,  did  not  become  responsible  for  the  loss  of  the  barge, 
although  the  delay  was  unnecessary  and  unreasonable,  and  although, 


698  Cases  on  Agexct.  [  Book  V 

as  the  event  proved,  the  barge,  but  for  the  delay,  would  probably 
have  been  safely  towed  to  its  place  of  destination.  In  such  case 
the  storm  must  be  regarded  as  the  proximate,  and  the  delay  as  only 
the  remote  cause  of  the  loss." 

The  following  cases  are  cited  as  sustaining  and  illustrating  the 
application  of  this  rule  of  remoteness  of  damages:  Denny  vs.  Hail- 
road  Co.,  13  Gray,  481,  74  Am.  Dec.  645;  Morrison  vs.  Davis,  20 
Pa.  St.  171,  67  Am.  Dec.  695;  Railroad  Co.  vs.  Reeves,  10  Wall. 
176;  Jones  vs.  Gihnore,  91  Pa.  St.  310;  Smith  vs.  Smith,  45  Vt. 
433;  Railroad  Co.  vs.  Burrows,  33  Mich.  6;  Wallrath  vs.  Whiife- 
ki7id,  26  Kan.  482. 

In  the  present  case  the  burning  of  the  cotton  was  the  result  of 
an  accidental  or  collateral  injury,  between  which  and  the  delay  in 
selling  there  was  no  necessary  or  natural  connection.  The  fire 
must  be  regarded  as  the  proximate,  and  the  delay  as  the  remote, 
cause  of  the  loss  of  the  cotton.  The  damages,  for  which  the  jury 
were  instructed  the  defendants  would  be  liable,  were  too  remote. 

Reversed  and  remanded. 


(73  Georgia,  418.) 

HATCHER  vs.    COMER. 

^Supreme  Court  of  Georgia,  September,  1SS4.J 

Plaintiffs  sued  defendants  on  a  note  on  open  account.  Defend- 
ants introduced  evidence  to  show  that  they  obtained  a  loan  from 
plaintiffs  and  shipped  them  two  lots  of  cotton;  the  first  lot  they 
instructed  i)laintiff8  to  sample  and  put  on  the  market,  and  pay  the 
note  with  the  proceeds;  they  wrote  plaintiffs  to  hold  second  lot  for 
instructions;  both  of  tliese  instructions  were  violated;  the  cotton 
was  sold  when  the  price  had  depreciated,  and  the  proceeds  were 
credited  on  the  account.  Defendants  claimed  that  the  note  was 
paid,  and  also  claimed  a  recoupment  for  the  difference  between 
what  the  cotton  brought  and  what  it  would  have  brought  if  the 
instructions  had  been  followed. 

Plaintiffs  asserted  that  they  had  sold  the  first  lot  of  cotton  as 
Boon  as  they  could,  and  credited  the  proceeds  on  the  account. 
Tliey  admitted  that  they  sold  the  second  lot  contrary  to  instruc- 


Ohap.  IV]  Hatchee  vs.  Combe.  699 

tions,  but  insisted  that,  having  advanced  money  on  the  cotton, 
they  had  a  right  to  sell,  such  being  the  custom  in  Savannah,  where 
they  lived.  They  also  showed  promises  to  pay  made  by  defendants. 
The  jury  found  for  the  plaintill's. 

S.  B.  Hatcher,  E.  O.  Simmons,  W.  A.  Little,  for  plaintiffs  in 
error. 

Denmark  S  Adams,  J.  M.  Dupree,  W.  H.  Fish,  W.  L.  S. 
Gigjiilliat,  for  defendants. 

Blandfoed,  J.  Comer  &  Company  brought  their  action 
against  Hatcher  &  Baldwin  upon  a  promissory  note  for  $1,038.90, 
dated  May  30,  1878,  and  due  October  the  15th  thereafter;  also 
upon  an  account  for  $70.83.  The  defendants  pleaded  payment  of 
the  note  and  recoupment  as  to  the  whole. 

Upon  the  trial  of  the  case,  defendants  introduced  a  letter  in 
evidence  from  themselves  to  the  plaintiffs,  dated  17th  October, 
1878,  in  which  they  stated  that  they  had  shipped  to  plaintiffs 
forty-five  bales  of  cotton,  and  instructed  plaintiffs  to  sample  and 
put  the  cotton  on  the  market,  and  with  the  proceeds  to  pay  their 
note.  They  also  showed  from  plaintiffs'  books  that  the  cotton  was 
sold  and  realized  some  thirteen  hundred  dollars,  which  was  placed 
as  a  credit  on  the  account  of  defendants,  which  account  consisted 
of  several  items  besides  the  note  sued  on.  Defendants  introduced 
evidence  to  show  that  if  the  cotton  had  been  sold  according  to 
instructions  contained  in  their  letter,  it  would  have  realized 
eighteen  hundred  dollars,  more  than  sufficient  to  have  paid  their 
note  and  the  account. 

Plaintiffs  in  error  insist  here  that,  under  these  facts,  the  note 
is  paid  off,  and  the  damage  which  they  sustained  by  reason  of 
the  failure  of  the  defendants  in  error  to  obey  their  instructions 
was  more  than  sufficient  to  extinguish  the  account,  and  that  this 
should  be  allowed  them  by  way  of  recoupment. 

The  defendants  in  error  contend  that,  by  the  custom  of  mer- 
chants which  obtains  in  Savanah,  as  they  had  advanced  plaintiffs 
in  error  on  the  cotton,  they  were  not  bound  to  obey  the  instructions 
of  the  plaintiffs  in  error,  but  might  hold  this  cotton  and  sell  in  their 
discretion. 

**  Peculiar  confidence  being  reposed  in  a  factor,  he  may,  in  the 
absence  of  instructions,  exercise  his  discretion,  according  to  the 
general  usages  of  the  trade."  Code,  sec.  2111.  "The  primary 
obligation   of  an  agent  or  factor,  whose  authority  is  limited  by 


700  Cases  on  Agency.  [Book  V 

instructions,  is  to  adhere  faithfully  to  those  instrnctions,  for  if  he 
unnecessarily  exceed  his  commission,  or  risk  his  principal's  effects 
without  authority,  he  renders  himself  responsible  for  the  con- 
sequences of  his  act;  and  if  loss  ensue,  it  furnishes  no  defense  to 
him  that  he  intended  to  benefit  his  principal."     12  Ga.  205. 

We  take  it  that  these  princijiles  thus  enunciated  are  the  law  of 
this  state,  and  whatever  particular  customs  there  may  be  prevailing 
in  the  city  of  Savanah,  they  must  give  way  to  the  law.  If  the 
instructions  were  given  by  plaintiffs  in  error  to  the  defendants,  as 
insisted  on  by  them,  and  in  this  the  record  sufficiently  sustains 
them,  then  the  court  below  should  have  instructed  the  jury  as  they 
prayed,  so  as  to  give  them  the  benefit  of  the  law  thus  laid  down, 
and  it  was  error  to  have  refused  the  request  on  this  point. 

Whatever  damage  the  plaintiffs  in  error  may  have  sustained  by 
the  failure  of  the  defendants  in  error  to  sell  the  cotton  as 
instructed,  they  had  the  right  to  recoup  against  the  claim  of 
defendants  in  error;  and  the  court  erred  in  refusing  the  requests  of 
plaintiffs  in  error  on  this  point. 

If  it  be  true,  as  contended  for  by  the  plaintiffs  in  error,  that  they 
shipped  to  defendants  in  error  forty-five  bales  of  cotton,  with 
directions  to  sell  the  cotton  and  pay  the  note  sued  on,,  and  if  defend- 
ants in  error  did  sell  the  cotton,  and  it  brought  enough  money  to 
pay  off  the  note,  then  this  was  an  extinguishment  of  this  debt, 
and  the  defendants  in  error  could  not  recover  upon  it.  The  court 
should  have  so  instructed  the  jury,  and  it  was  error  to  have  refused 
the  instruction.  Code,  sec.  2809.  Pritchurd  vs.  Comer,  71  Ga. 
IS;  51  Ga.,  507;  57  Id.,  450;  34  Id.  658;  27  Id.  47;  30  Id.  857;  45 
Id.  505. 

The  principles  hero  announced  will  we  think,  be  sufificient  to 

control  this  case  upon  another  trial. 

Judgment  reversed. 


(30  Minnesota,  214,  1  Am.  St.  Rep.  063.) 

DAVIS   vs.  KOBE. 

f Supreme  Court  of  Minnesota,  December,  1SS8.J 

Action  to  recover  a  balance  of  account  for  disburBementa,  charges, 
commiasious,  and  advances  on  wheat  consigned  by  the  defendant 


Chap.  IV  ]  Davis  vs.  Kobe.  701 

to  the  plaintiff  at  Duluth,  and  which  had  heen  sold  hy  the  latter, 
some  of  it  against  the  defendant's  instructions.  The  plaintiff  had 
a  verdict,  and  the  defendant  appealed  from  an  order  refusing  .a  new 
trial.     Other  facts  are  stated  in  the  opinion. 

Bruchart  and  Reijnolds,  for  the  appellant. 
W.  W.  Billson,  for  the  respondent. 

By  court,  Dickinsoi^,  J.  A  factor  or  commission  merchant, 
to  whom  wheat  is  consigned  for  storage  in  an  elevator,  not  a 
private  warehouse,  and  for  sale,  may  store  it  in  a  mass  in  a  bin  with 
other  wheat  of  the  same  grade  and  quality,  in  the  absence  of 
instructions  from  the  consignor  to  the  contrary.  It  has  become  a 
matter  of  common  knowledge  that  such  is  the  customary  manner 
of  storing  wheat  in  our  general  commercial  elevators,  and  of  this 
the  courts  should  not  affect  ignorance,  but  should  take  judicial 
notice  without  proof.  The  fact  that  the  wheat  is  of  the  grade 
known  as  "  condemned  "  creates  no  exception  to  the  rule.  There 
was  therefore  no  error  in  that  part  of  the  charge  of  the  court  refer- 
red to  in  the  appellant's  first  assignment. 

The  court  did  not  err  in  instructing  the  jury  that  if  the  consignor 
shipped  this  grain  to  his  factor  at  Duluth  to  be  sold  there,  and  the 
grade  at  Duluth  was  not  as  good  aa  at  the  place  of  shipment,  the 
consignor  must  bear  the  loss,  in  the  absence  of  special  instructions  to 
his  factor.  This  was  only  saying,  in  other  words,  that  the  factor, 
in  executing  his  agency  by  selling  in  the  Duluth  market,  would 
not  be  responsible  to  his  principal  in  respect  to  the  grades  estab- 
lished at  that  place.  The  principal  assumed  the  risk  of  that  when 
he  selected  his  market. 

The  court  properly  instructed  the  jury  that  the  factor  was  justi- 
fied in  selling  the  wheat,  notwithstanding  the  request  of  the  prin- 
cipal to  hold  it  longer.  Ordinarily,  the  agent  would  be  bound  to 
obey  the  instructions  of  his  principal  as  to  the  time  of  selling.  But 
it  was  shown  that  the  factor  had  made  large  advances  to  his  princi- 
pal upon  this  wheat;  that  the  grain  was  of  doubtful  suflSciency  as 
security  for  what  was  due  to  the  factor  on  account  thereof;  that  the 
factor  had  repeatedly  demanded  repayment  of  his  advances,  or 
security  for  the  same,  as  a  condition  of  his  continuing  to  hold  the 
wheat,  notifying  his  principal  that  he  should  sell  if  his  demand 
was  not  complied  with;  and  that,  although  reasonable  notice  had 
been  given,  the  principal  had  neglected  to  reimburse  or  secure  the 
agent.     Under  such  circumstances,  the  factor  had  a  right,  acting 


702  Cases  on  Agency.  [Book  V 

in  good  faith,  and  with  reasonable  discretion,  with  regard  both  to 
the  reimbursement  of  himself  and  the  interest  of  his  principal,  to 
sell  the  property.  Brown  vs.  McGran,  14  Pet.  479;  Feild  vs. 
Farrington,  10  Wall.  141;  Parler  vs.  Brancker,  22  Pick.  40. 

From  what  has  already  been  said  it  follows  that  the  charge  was 
correct,  that  if  there  were  no  special  instructions  as  to  a  separate 
storage  of  the  grain,  and  if  it  sold  for  a  fair  price,  the  verdict 
should  be  for  plaintiff.  In  other  words,  the  factor  being  justified 
in  selling  and  having  sold  for  a  fair  price,  the  principal  is  not, 
because  of  such  sale,  entitled  to  recover  against  the  factor. 

Order  affirmed. 


III. 

LIABILITY   TO    ACCOUNT   TO   PBINCIPAL. 


(24  Wendell,  203.) 

CO  OLE  Y  vs.  BETTS. 

C  Supreme  Court  of  Keiv  York,  May,  I84O.J 

Betts  sued  Cooley  and  Bangs  in  the  common  pleas,  and  declared 
on  the  common  counts  in  assumpsit  for  goods  sold,  money  had  and 
received,  etc.  The  declaration  also  contained  a  special  count  that 
in  consideration  that  the  plaintiff  would  deliver  divers  goods, 
wares  and  merchandise  to  the  defendants,  to  bo  sold  by  them  for 
him,  they  undertook  to  sell  the  same,  and  to  render  a  true  and 
just  account  of  the  sale  and  of  the  proceeds  when  they  should  be 
thereunto  afterwards  requested.  I'ho  plaintiff  then  averred  a 
delivery  of  the  goods  to  the  defendants,  a  sale  by  tliem,  and  a 
request  to  account  and  pay  over,  and  for  breach  alleged  that  the 
defendants  had  not  rendered  an  account  of  the  goods  or  of  the 
moneys  arising  from  the  sale.  There  was  a  second  special  count, 
eimilar  to  the  first.  The  defendants  pleaded  non-assumpsit  as  to 
all  but  I^H.98,  and  as  to  that  a  tender.  The  tender  was  admitted 
in  the  replication. 

On  the  trial  in  the  Common  Pleas  the  plaintiff  proved  that  in 
March,  1837,  he  sent  a  quantity  of  books  which  cost  $419.16,  to 
the  dofcndants,  to  be  sold  at  auction,  and  that  the  defendants  dur- 
ing the  same  mouth  sold  the  books.     Upon  this  proof  he  rested. 


Chap.  IV]  CooLEY  vs.  Betts.  703 

The  action  -was  commenced  in  October,  1837.  The  defendants 
moved  for  a  non-suit  on  the  grounds:  1.  That  no  demand  of  an 
account  or  request  for  a  settlement  had  been  shown;  and,  2.  That 
there  was  no  proof  for  the  amount  for  which  the  goods  sold.  The 
motion  was  denied,  and  the  defendants  excepted.  In  the  further 
progress  of  the  trial,  the  defendants  showed  that  the  proceeds  of 
the  plaintiff's  goods  on  the  sale  were  $210.07.  A  verdict  having 
passed  against  the  defendants,  they  sued  out  a  writ  of  error. 

Willis  Ball,  (Attorney  General,)  for  the  plaintiffs  in  error. 
B.  Lochiuood,  for  the  defendants  in  error. 

By  the  court,  Bronson,  J.  In  the  absence  of  any  express 
stipulation  between  the  parties,  the  law  will  imply  a  promise  by  a 
factor,  bailiff  or  other  agent  to  render  an  account  to  his  principal;  but 
it  seems  not  to  be  fully  settled  whether  the  agent  will  be  deemed  in 
default  after  the  lapse  of  what  may  be  considered  a  reasonable  time, 
or  whether  he  must  be  plainly  put  in  the  wrong,  by  showing  a 
demand  before  suit  brought. 

So  far  as  relates  to  the  two  special  counts,  it  is  not  necessary  to 
decide  this  question,  for  the  plaintiff  has  not  declared  on  a  promise 
to  account  within  a  reasonable  time,  but  on  a  promise  to  account 
on  request;  and  a  special  request  is  alleged  in  stating  the  breach. 
The  plaintiff  has  put  his  own  construction  upon  the  contract,  and 
if  we  should  think  him  mistaken,  and  that  he  might  have  recovered 
in  another  form  of  declaring,  I  do  not  see  how  we  can  help  him  out 
of  the  difficulty.  In  the  language  of  Best,  C.  J.,  in  Elhorn  vs. 
Upjohn,  1  Carr.  &  Payne,  572,  the  plaintiff  has  tied  himself  down 
to  a  particular  averment,  which  he  is  bound  to  prove. 

But  as  the  declaration  also  contains  the  money  counts,  the  ques- 
tion is  presented  in  another  form.  In  relation  to  those  counts,  I 
may  remark  that  it  does  not  appear  whether  the  factors  were  to 
sell  for  cash  or  on  credit,  nor  whether  they  have  received  the 
money.  But  if  we  assume  that  the  sale  was  for  cash,  and  that  the 
money  was  paid,  I  still  think  the  plaintiff  cannot  recover  without 
showing  a  demand,  or  instructions  to  remit.  The  action  is  founded 
on  a  supposed  breach  of  trust,  which  must  be  made  out  affirma- 
tively before  the  agent  can  be  charged. 

In  Buller's  N.  P.  148,  it  is  said  that  where  indelitatus  assumpsit 
is  brought  for  money  received  ad  compvtandum,  it  is  necessary  to 
prove  a  misapplication,  or  breach  of  trust;  for  if  a  man  receives 
money  to  a  special  purpose,  it  is  not  to  be  demanded  of  the  party  as 


704  Cases  ox  Agency.  [Book  V 

a  duty  till  he  Lave  neglected  it,  or  refused  to  apply  it  according  to 
the  trust.  He  cites  Poulter  vs.  Cornwall,  1  S^ilk.  9,  where  the 
money  was  received  ad  computandum,  and  on  motion  in  arrest  of 
judgment,  the  court  said  it  must  be  intended,  after  verdict,  that 
there  was  proof  to  the  jury  that  the  defendant  refused  to  account, 
or  had  done  somewhat  else  that  rendered  him  an  absolute  debtor. 

In  Ferris  vs.  Faris  and  others,  10  Jolms.  R.  285,  the  defendants 
were  foreign  factors,  and  had  rendered  an  account  of  the  goods 
which  had  been  consigned  to  them  for  sale.  It  was  held  that  an 
action  against  them  for  the  proceeds  of  the  goods  would  not  lie,  until 
they  were  shown  to  be  in  default,  by  proving  a  demand,  or  an  im- 
proper disregard  of  instructions  to  remit  the  money.  In  Taylor  vs. 
Bates,  5  Cowen,  376,'  it  was  held  that  an  action  would  not  lie  against 
an  attorney  for  money  collected  for  his  client,  until  after  a  demand, 
or  a  request  to  remit.  W oodwokth,  J.,  said,  the  contrary  doc- 
trine would  be  in  opposition  to  the  nature  of  the  defendant's  trust, 
as  well  as  against  justice  and  good  faith.  The  same  point  was 
adjudged  in  llathlun  vs.  Inrjalh,  7  Wendell,  320,  where  the  plaint- 
iff was  non-suited,  although  several  years  had  elapsed  between  the 
time  of  collecting  the  money  and  the  bringing  of  the  action.  In 
To;pham  vs.  BraddicJc,  1  Taunt.  572,  the  defendant  was  a  foreign 
factor,  see  p.  104,  and  it  was  held  that  no  action  would  lie  for  not 
rendering  an  account  of  the  goods  consigned  to  him  for  sale,  until 
there  had  been  a  demand  by  the  principal;  and,  consequently,  that 
the  statute  of  limitations  did  not  commence  rimning  when  the  goods 
were  sold,  but  on  a  demand  made. 

In  Massachusetts,  the  rule  seems  to  be  that  a  request  is  not  nec- 
essary in  the  case  of  a  foreign  factor,  on  account  of  the  great 
inconvenience  and  embarrassment  to  trade  which  would  follow,  if 
the  merchant  was  obliged  to  send  abroad  to  make  a  demand;  and, 
in  general,  the  factor  to  whom  goods  have  been  consigned  for  sale, 
is  liable  to  an  action  without  showing  a  request,  if  he  neglect  to 
render  an  account  within  a  reasonable  time;  but  if  ho  has  rendered 
an  account  at  the  proper  time,  an  action  for  the  proceeds  of  the 
goods  will  not  lie  without  a  demand,  unless  it  appears  from  the 
course  of  business  that  the  factor  was  to  remit  without  instructions. 
Clark  vs.  Moody,  17  Mass.  K.  145;  Lanyley  vs.  Sturlcvnnt,  7  Pick. 
214;  Dodye  vs.  Perkins,  9  Id.  308-387.  I  do  not  understand  these 
cases  as  conflicting  with  the  doctrine,  tliat  this  action  for  money  had 
and  received  to  the  phiintiU'a  use  cannot  bo  maintained  without  show- 
ing either  a  demand,  or  instructions  to  remit;  or,  that,  according 


Chap.  IV  ]  CooLEY  vs.  Betts.  705 

to  the  course  of  this  business,  it  was  the  duty  of  the  defendants  to 
remit  without  instructions,  neither  of  which  facts  were  proved  in 
this  case. 

Whether  the  distinction  taken  in  the  Massachusetts  cases  in 
relation  to  foreign  factors  rests  on  a  solid  foundation,  we  need  not 
now  consider;  for  it  does  not  appear  in  this  case  but  that  both 
parties  reside  in  the  same  state.  But  I  cannot  forbear  to  remark 
that  the  inconvenience  of  sending  abroad  to  make  a  demand  cannot 
alter  the  nature  of  the  factor's  trust;  and  if  other  agents  are  not  in 
default  until  after  a  request,  I  can  see  no  principle  which  will  sub- 
ject the  foreign  factor  to  an  action  without  a  demand.  In  Ferris 
vs.  Paris,  10  Johns.  E.  285,  and  in  Topham  vs.  BraddicJc,  1  Taunt. 
573,  the  defendants  were  foreign  factors,  and  in  both  cases  a 
demand  by  the  principal  was  held  to  be  necessary. 

I  am  not  disposed  to  deny  that  there  may  be  a  sound  distinction 
between  an  action  for  not  accounting,  and  an  action  for  not  paying 
over  the  proceeds  of  the  goods.  It  is  the  duty  of  an  agent  to 
render  an  account  of  his  transactions  to  his  principal  within  a  rea- 
sonable time,  and  when  it  appears  that  he  has  neglected  to  do  so, 
an  action  for  not  accounting  may,  perhaps,  be  maintained  without 
a  demand.  But  here  there  was  no  evidence  to  show  that  the 
defendants  had  not  rendered  an  account.  And  besides,  the  action 
is  for  not  paying  over  the  proceeds  of  the  goods — the  special  counts 
being  laid  out  of  the  case — and  in  such  an  action  it  is  necessary 
to  show  a  demand,  or  instructions  to  remit. 

After  a  great  lapse  of  time,  and  when  nothing  appears  to  the 
contrary,  it  may  be  presumed  not  only  that  there  has  been  a 
demand  by  the  principal,  but  that  an  account  has  been  rendered 
and  settled  by  the  agent.  Topliam  vs.  BraddicJc,  1  Taunt.  572. 
But  that  doctrine  obviously  proves  too  much  for  the  plaintiff's 
case.  In  the  absence  of  any  direct  evidence  on  the  subject,  there 
is,  at  the  least,  as  much  reason  for  presuming  that  the  defendants 
have  faithfully  discharged  their  trust  as  there  is  for  presuming 
them  guilty  of  a  culpable  neglect  of  duty;  and  if  we  presume  a 
demand  by  the  plaintiff,  we  must  presume  also  an  account  and 
payment  of  the  proceeds  by  the  defendants. 

The  defendants  offered  a  set-off  for  other  goods  purchased  by 

the  plaintiff  at  the  same  auction,  which  was  called  a  "  trade's  sale;" 

but  the  case  is  defective  on  this  point,  in  not  stating  that  any 

question  was  made  and  exception  taken  after  the  proof  came  out 

45 


706  Cases  on  Agency.  [Book  V 

that  a  part  of  those  goods  had  been  delivered.  On  another  trial,  it 
may  be  diflicult  for  the  plaiutiil  to  distinguish  the  case  from  that 
of  Milh  vs.  Hunt,  17  Wendell,  333.  But  the  judgment  must  be 
reversed  on  the  other  ground. 

Judgment  reversed. 

Note, — See  Jett  vs.  Hempstead,  ante,  p.  496. 


(33  Maryland,  412,  3  Am.  Rep.  190.) 

LEWIS  BROTHEKS  &  CO.  ts.  BRERME. 

(Court  of  Appeals  of  Maryland,  October,  1S70.) 

Defendant  Brehme  was  the  factor  of  plaintiffs  and  sold  goods  for 
them  to  one  Akers,  and  guaranteed  the  payment  in  gold  or  its 
equivalent.  Akers  paid  Brehme  and  the  latter  deposited  the 
money  in  bank,  and  two  days  later  bought  a  gold  draft  on  a  New 
York  bank,  payable  to  his  own  order,  for  the  amount  and  also  an 
additional  amount  whicli  he  owed  iDlaintifTs,  and  indorsed  the  draft 
to  plaintiffs  and  sent  it  to  them  at  Philadelphia.  Plaintiffs  received 
it  the  next  day  and  at  once  sent  it  to  New  York  for  collection. 
Here  it  was  dishonored,  of  which  fact  plaintiffs  were  notified,  and 
they  at  once  gave  notice  to  Brehme.  The  drawing  bank  had 
failed.  Brehme  endeavored  to  obtain  pnyment  from  it,  and  not 
succeeding  was  made  a  preferred  creditor  in  an  assignment  subse- 
quently made  by  the  bank.  This  action  was  brought  to  recover 
the  amount  from  Brehme.  Judgment  for  defendant  and  plaintiffs 
appealed. 

Wm.  F.  Frich,  for  appellants. 

If  m.  A.  Fisher  and  diaries  Marshall,  for  appellees. 

Alvey,  J.  It  is  conceded  in  this  case  that  the  defendant  was 
the  agent  of  the  plaintiffs  for  the  sale  of  goods,  and  that,  in  addi- 
tion to  the  conin)ission  allowed  the  defendant  as  ordinary  agent, 
an  additional  commission  was  agreed  to  be  allowed,  and  was 
actually  allowed,  for  and  in  consideration  of  the  defendant's 
guaranty  of  jjayment  of  all  bills  of  goods  j)urclKiscd  of  the  plaintiffs 
by  a  certain  customer,  who  was,  through  the  agency  of  tlic  defend- 


Ohap.  IV  ]     Lewis  Brothers  &  Co.  vs.  Bkehme.  707 

ant,  induced  to  deal  with  the  plaintiffs,  merchants  in  Philadelphia, 
and  such  additional  commissiou  was  to  be  paid  whether  the  pur- 
chases were  made  by  the  particular  customer  directly  of  the 
plaintiffs,  or  through  the  defendant  as  their  agent.  The  customer 
having  purchased  goods  of  the  plaintiffs,  and  paid  for  them  to  the 
defendant,  the  agent,  and  the  money  having  been  lost  in  the 
manner  disclosed  in  the  evidence,  and  stated  in  the  prayers  of  the 
respective  parties,  the  question  is,  upon  whom  is  that  loss  to  fall? 

It  is  insisted  on  the  part  of  the  plaintiffs  that  the  defendant, 
being  an  agent,  acting  under  a  del  credere  commission,  is  bound  to 
pay,  not  conditionally,  but  absolutely,  as  if  he  were  himself  the 
vendee  of  the  goods;  and  that,  consequently,  he  did  not  discharge 
his  liability  by  the  purchase  and  transmission  of  the  gold  draft  of 
the  27th  of  April,  1866.  And  even  if  the  liability  of  the  defend- 
ant, by  reason  of  the  del  credere  commission,  be  not  maintained  to 
the  extent  contended  for,  still,  the  plaintiffs  insist  that  as  ordinary 
agent,  whose  duty  it  was  to  remit  funds  to  his  principal,  the 
defendant  having  procured  the  draft  payable  to  his  own  order,  and 
indorsed  it  to  the  plaintiffs  without  excluding  recourse,  is  under  all 
the  circumstances  attending  the  transaction,  liable  as  indorser,  the 
drawer  having  failed,  and  the  draft  meeting  with  dishonor. 

On  the  other  hand,  the  defendant  contends  that  his  relation  to 
the  plaintiffs  was  not  that  of  a  del  credere  agent  or  factor  strictly 
speaking;  but  that  if  he  be  so  regarded,  the  guaranty,  in  considera- 
tion of  the  commission,  only  extends  to  the  payment  of  the  money 
for  the  goods  by  the  vendee,  and  not  to  its  safe  transmission  to  the 
vendor;  and  that,  consequently,  the  guaranty  was  gratified  and  dis- 
charged when  the  money  was  paid  by  the  purchaser  to  the  defend- 
ant as  the  plaintiffs'  agent.  He  also  contends  that  he  is  not  liable 
as  indorser  of  the  draft  transmitted,  because  of  the  relation  of 
principal  and  agent  existing  at  the  time  between  the  plaintiffs  and 
himself,  in  reference  to  which  the  draft  was  purchased,  and  that, 
acting  for  the  convenience  of  the  plaintiffs,  he  can  only  be  held 
responsible  for  good  faith  and  ordinary  dilligeuce. 

These  positions  of  the  parties  were  sought  to  be  maintained  by 
them  at  the  trial  in  the  court  below,  and  with  that  view  they  pro- 
pounded prayers  for  instruction  to  the  jury;  but  the  court  reject- 
ing those  of  the  plaintiffs,  and  granting  those  offered  by  the 
defendant,  the  plaintiffs  have  brought  those  rulings  to  this  court  for 
review,  and  whether  they  be  correct  or  otherwise,  according  to  our 
judgment,  will  appear  in  the  sequel  of  this  opinion. 


708  Cases  on  Agency.  [Book  V 

We  cannot  resist  the  conclusion  that  the  defendant  was,  at  the  time 
of  the  transaction  involved  in  this  controversy,  strictly  a  del  credere 
agent  of  the  plaintiffs;  although  the  nature  and  extent  of  the 
obligations  imposed  upon  such  an  agent  has  been  variously  stated, 
and,  in  regard  to  it,  down  even  to  the  present  time,  no  little  con- 
flict will  be  found  to  exist  among  judges  and  authors  of  the  highest 
repute. 

On  the  one  hand  there  are  those  who  maintain  that  an  agent 
del  credere  for  the  sale  of  goods  makes  himself  absolutely  and  in 
the  first  instance  liable  to  his  principal  for  the  price  of  the  goods 
sold;  while  on  the  other  hand  it  has  been  strongly  maintained  that 
such  an  agent  only  incurs  a  secondary  responsibility,  that  of  mere 
surety,  whereby  he  can  be  required  to  pay  only  in  the  event  of 
failure  on  the  part  of  the  principal  debtor.  And  some  of  the 
authorities  have  gone  to  the  extreme  of  maintaining  that  the 
undertaking  of  the  agent,  under  a  del  credere  commission,  is  a  mere 
guaranty  of  the  debt  of  another,  and,  therefore,  within  the  statute 
of  frauds.  Which  of  these  positions  is  correct  depends  to  a  great 
extent  upon  the  state  of  the  authorities,  the  question  never  having 
been  finally  adjudicated  in  this  State. 

Whenever  an  agent,  in  consideration  of  additional  commission, 
Buch  as  was  agreed  to  be  allowed  in  this  case,  guaranties  to  his  prin- 
cipal the  payment  of  debts  that  become  due  through  his  agency,  he 
is  said  to  act  under  a  del  credere  commission.  What,  then,  is  the 
nature  and  extent  of  this  guaranty?  In  Grove  vs.  Dulois,  1  T.  R. 
112,  a  case  of  a  policy  broker.  Lord  Mansfield  answered  this 
question  in  very  plain  and  unqualified  terms  when  he  said,  "It  is 
an  absohite  engagement  to  the  principal  from  the  broker,  and 
makes  him  liable  in  the  first  instance.  There  is  no  occasion  for 
the  principal  to  communicate  with  the  underwriter,  though  the 
law  allows  the  principal  for  his  benefit,  to  resort  to  him  as  collateral 
security.  But  the  broker  is  liable  at  all  events."  In  this  Mr. 
Justice  BuLLEB  concurred,  and  said  that  he  had  known  many 
actions  to  have  been  brought  against  brokers  with  a  commission  del 
credere,  and  that  he  had  never  heard  any  inquiry  made  in  such 
caeca,  whether  there  had  been  a  previous  demand  upon  tlie  under- 
writer and  a  refusal;  and  ho  declared  that  such  was  not  the  prac- 
tice. Thus  showing,  according  to  the  oi)inion8  of  these  great 
judges,  that  the  obligation  of  such  undertaking  was  primary  and 
abholute  in  its  character,  and  that  tlie  agent  was  regarded  as  stand- 
ing in  the  relation  to  his  principal  of  an  original  debtor. 


Chap.  IV  ]     Lewis  Bkothers  &  Co.  vs.  Bkehme.  709 

Ten  years  after  the  case  of  Grove  vs.  Dubois,  the  case  of 
Alachenzie  vs.  Scott,  6  Bro.  P.  C.  280,  occurred  in  the  house  of 
lords,  on  an  appeal  from  the  court  of  sessions  in  Scotland.  That 
case  was  very  analogous  in  its  circumstances  to  the  one  before  ns. 
There,  a  factor,  under  a  commission  del  credere,  sold  goods  and 
took  accepted  bills  from  the  purchasers,  which  he  indorsed  to  a 
banker  at  the  place  of  sale,  and  received  the  banker's  bill  for  the 
amount,  payable  to  his,  the  factor's,  own  order,  on  a  house  in 
London.  This  banker's  bill  the  factor  indorsed  and  transmitted 
to  his  principal,  who  got  the  same  accepted.  The  acceptors  and 
drawer  having  failed  before  payment,  it  was  held,  according  to  the 
head  note  of  the  case,  that  the  factor  was  answerable  for  the  amount 
of  the  bill,  being  personally  liable  under  his  commission  del 
credere,  to  satisfy  his  principal  the  price  of  the  goods  sold. 

It  was  insisted,  in  that  case,  as  it  has  been  in  this,  that  the  del 
credere  obligation  extended  only  to  guaranteeing  the  payment  of 
the  price  of  the  goods  by  the  vendee,  and  that  the  remittance  of 
the  money  by  the  factor  was  a  transaction  entirely  different  and 
distinct.  But,  if  the  uniform  interpretation  of  that  case  be  cor- 
rect (there  being  no  reason  assigned  for  the  judgment  given),  the 
the  argument  in  that  respect  did  not  avail;  and,  in  view  of  the 
law  as  it  has  been  announced  in  Grove  vs.  Dubois,  it  is  not  diffi- 
cult to  perceive  upon  what  ground  that  decision  was  based.  And 
afterwards,  in  1803,  the  same  general  proposition  was  again  point- 
edly asserted  as  the  law  of  England  in  the  case  of  Houghton  vs. 
Matthews,  3  Bos.  &  Pull.  489. 

By  these  decisions  the  law  was  regarded  as  settled  in  England, 
until  about  the  year  1816;  and  all  the  text-writers,  and  authors  of 
the  elementary  treatises  upon  the  subject  of  commercial  contracts 
before  that  time  laid  it  down,  as  the  unquestionable  law,  that  an 
agent,  acting  under  a  commission  del  credere,  was  bound  to  his 
principal  in  the  first  instance  and  as  an  original  debtor.  The  law  will 
be  found  so  stated  by  Livermore,  in  his  work  on  Agency,  409,  410; 
Paley  on  Agency,  40;  Comyn  on  Contracts,  vol.  1,  253;  and  Chitty 
in  his  work  on  Common  Law,  vol.  3,  222. 

But  it  is  said  that  the  cases  to  which  we  have  referred  do  not  now 
announce  the  law  as  accepted  in  England,  and  we  are  referred  to 
the  case  of  Morris  vs.  Cleasby,  4  Maule  &  Selw.  566,  decided  in 
1816,  and  the  cases  following  on  its  authority,  to  show  how  the  rule 
has  been  qualified  if  not  entirely  changed. 

It  is  true,  in  the  case  of  Morris  vs.  Cleasby,  Lord  Ellenborough 


710  Cases  on  Agency.  [Book  V 

did  express  a  decided  dissent  from  the  principle  annonnced  in  tlie 
previous  decisions,  both  as  to  the  nature  and  scope  of  the  del  credere 
obligation.  He  said  that  the  guarantor,  in  consideration  of  the 
commission,  is  only  to  answer  for  the  solvency  of  the  vendee,  and 
to  pay  the  money  if  the  vendee  does  not;  and  that,  on  the  failure 
of  the  vendee,  the  agent  is  to  stand  in  his  place  and  make  his 
default  good,  thus  clearly  placing  the  agent  in  the  position  of  mere 
surety  to  the  purchaser  of  the  goods.  And  if  such  be  the  true 
nature  and  character  of  the  contract,  seeing  that  it  is  entirely 
collateral  and  secondary,  it  is  difficult  to  perceive  how  it  can  escape 
the  operation  of  the  statute  of  frauds.  Be  that,  however,  as  it 
may,  the  decision  of  Lord  Ellenborough  was  sanctioned  by  the 
case  of  Peele  vs.  Korthcote,  7  Taunt.  478,  and  also  impliedly  sanc- 
tioned by  the  case  of  Gall  vs.  ComlcTy  7  Taunt.  558,  in  the  common 
pleas.  And  from  the  time  of  these  last  decisions  until  very 
recentlv,  all  the  treatises  on  commercial  contracts  have  stated  the 
law  in  accordance  with  the  opinion  of  Lord  Ellenborough,  taking 
the  doctrine  of  Lord  Mansfield  to  have  been  overruled.  It  is  so 
stated  in  Chitty  on  Contracts;  Eussell  on  the  Law  Eclating  to 
Factors  and  Brokers;  Smith's  Commercial  Law,  and  in  other  works 
treating  of  the  subject. 

Nor  has  there  been  uniformity  of  decision  on  the  subject  in  the 
courts  of  this  country,  though  we  think  the  decided  weight  of 
authority  is  in  support  of  the  doctrine  as  annonnced  in  Grove  vs. 
Dubois.  In  the  case  of  Thompson  vs.  Perkins,  3  ^Mason  C.  C.  232, 
before  Judge  Story,  in  1823,  the  principle  of  Grove  vs.  Dubois 
was  repudiated  as  being  incorrect,  and  that  of  Morris  vs.  Clcaaby 
sanctioned;  though  the  facts  of  the  case  do  not  appear  to  have 
required  a  distinct  ruling  npon  the  particular  question  now 
presented.  It  was  an  action  of  assumpsit  by  the  principal  against 
the  assignee  of  the  factor  del  credere  who  had  sold  the  goods  of  his 
principal  and  taken  negotiable  notes,  payable  on  time,  in  his  own 
name,  for  the  amount  of  sales;  and  afterward,  and  before  tlie  notes 
became  due,  the  factor  failed,  and  assigned  the  notes  to  his 
assignee  for  the  benefit  of  his  creditors,  and  the  assignee  afterward 
receiving  the  money  duo  on  the  notes,  it  was  held  tluit  the  principal 
was  entitled  to  recover  the  money  so  received  from  the  assignee, 
subject  to  a  deduction  of  the  amount  of  the  lieu  of  the  factor  for 
his  commissions  and  charges. 

Ul)on  such  state  of  facts,  it  is  clear  the  riglit  to  recover  was 
equally  the  result  of  the  doctrine  of  Lord  Mansmeld  as  that  of 


Chap.  IV]     Lewis  Brothers  &  Co.  vs.  Brehme.  711 

Lord  Ellenborough.  All  the  cases  concede  it  to  be  the  right  of 
the  principal  to  forbid  payment  to  the  agent,  and  to  maintain  an 
action  himself  against  the  buyer  to  recover  the  price  of  the  goods; 
or  to  pursue  his  goods,  or  the  notes  taken  for  them,  into  the  hands 
of  third  parties,  precisely  as  if  no  del  credere  contract  existed.  And 
though  such  right  in  the  principal  would  seem  to  consist  only  with 
a  collateral  undertaking  by  the  agent,  yet,  in  the  contract  del 
credere,  being  sui  generis,  it  is  held  in  nowise  to  change  the 
original  and  independent  character  of  the  agent's  undertaking  to 
his  principal. 

In  the  case  of  Swan  vs.  Nesmith,  7  Pick.  220,  19  Am.  Dec.  282 
occuring  a  few  years  after  the  case  in  3  Mason,  the  supreme  court 
of  Massachusetts  decided  that  the  legal  effect  of  a  commission  del 
credere  was  to  make  the  agent  liable  at  all  events  for  the  proceeds 
of  the  sale,  so  that  he  might  be  charged  in  indeJntatus  assumpsit, 
as  for  goods  sold  to  him.  There  the  contract  was  admitted  to  be 
original  and  not  collateral,  and  therefore  not  within  the  statute  of 
frauds;  and  the  necessary  conclusion  is,  that  the  court  intended 
fully  to  sanction  the  principal  of  Grove  vs.  Dubois,  to  which,  and 
the  case  of  MacTcenzie  vs.  Scott,  they  refer  for  the  definition  of  the 
nature  of  the  commission  del  credere.  And  so  in  New  York,  the 
same  principle  is  established,  as  will  be  seen  by  reference  to  Wolff 
vs.  Eoppel,  5  Hill,  458,  and  same  case  on  appeal,  2  Denio,  3G8,  43 
Am.  Dec.  75,  and  Sherwood  vs.  Stone,  14  N.  Y.  267. 

The  two  last  cases,  being  in  the  court  of  last  resort,  fully  approve 
and  adopt,  so  far  as  we  can  discover  from  the  opinions  delivered, 
the  principle  of  the  case  of  Grove  vs.  Dulois  and  Mackenzie  vs. 
Scott.  Judge  Story,  however,  in  Lis  work  on  Agency,  section 
215,  adopting  his  own  view  of  the  law  as  found  in  Thompson  vs. 
Perkins,  supported  by  Morris  vs.  Cleashy,  and  the  cases  in  the 
common  pleas,  says,  that  the  true  engagement  of  the  agent  del 
credere  is  merely  to  pay  the  debt,  if  it  is  not  punctually  discharged 
by  the  buyer.  That,  in  legal  effect,  he  warrants  or  guarantees  the 
debt;  and  thus  he  stands  more  in  the  character  of  a  surety  for  the 
debt  than  as  a  debtor.  And  the  principle  is  so  stated  in  other 
American  treatises.  But,  with  all  due  deference  to  the  high 
authority  of  Judge  Story,  we  think  the  decided  weight  of  authority 
is  against  his  position. 

In  England  the  question  has  been  recently  under  discussion  and 
re-examination,  the  result  of  which  is  quite  at  variance  with  the 
doctrine  laid  down  in  Morris  vs.  Cleasly.      In  Couturier  vs.  Has- 


712  Cases  o:s  Agency.  [Book  V 

tie,  8  Exch,  39,  the  action  was  brought  by  the  principal  against  his 
factor  who,  on  commission  del  credere,  had  sold  a  cargo  of  corn, 
and  the  purchaser  refusing  to  comply  with  the  contract  on  insuf- 
ficient grounds,  and  afterwards  becoming  bankrupt,  the  question  waa 
whether  the  factor  was  liable  for  the  non-fulfillment  of  the  contract, 
by  reason  of  his  del  credere  commission,  there  being  no  guarantee 
in  writing;  and  the  court  held  the  factor  liable,  not  regarding  the 
undertaking  as  one  simply  to  pay  the  debt  of  another,  within  the 
4th  section  of  the  statute  of  frauds;  and  the  decision  in  Wolff  vs. 
Koppel,  5  Ilill,  458,  was  referred  to  and  adopted  as  containing 
sound  law  upon  the  subject.  And  in  the  more  recent  case  of 
Wickham  vs.  ]\  ic/cJuim,  2  Kay  &  John.  478,  Sir  AVm.  Page  Wood, 
then  the  vice-chancellor,  and  at  present  the  lord  chancellor  of 
England,  in  referring  to  the  case  of  Couturier  vs.  Ilastie,  as 
authority,  said: 

**  When  I  look  at  the  whole  of  that  case,  and  consider  the  rea- 
sons given  by  the  judges  in  delivering  their  judgments,  though 
given  very  cautiously  and  guardedly,  I  cannot  but  conclude  that 
they  considered  that  an  agent  entering  into  contract  in  the  nature  of 
a  del  credere  agency,  entered  in  effect  into  a  new  substantial  agree- 
ment with  the  person  whose  agency  he  undertook;  that  the  agree- 
ment so  entered  into  by  him  was  not  a  simple  guarantee,  but  a  dis- 
tinct and  positive  undertaking  on  his  part,  on  which  he  would 
become  primarily  liable.  Otherwise,  I  cannot  see  how  the  learned 
judges  could  arrive  at  the  conclusion  that  the  undertaking  was  not 
within  the  statute  of  frauds." 

Supposing  this  to  be  the  correct  conclusion  deducible  from  the 
present  state  of  the  authorities,  of  which  we  have  no  doubt,  the 
contract  being  distinct  and  positive,  rendering  the  agent  pri- 
marily liable,  it  necessarily  follows  that  the  agent  stands  in  no 
such  relation  to  his  principal  as  that  of  mere  surety  for  the  price 
of  the  goods  sold,  llis  relation  to  his  principal  is  that  of  debtor 
as  well  as  agent;  and  being  so,  the  legal  consequences  of  the  debtor 
relation  must  follow.  Indeed,  it  was  conceded  in  the  case  of  Lever- 
ick  vs.  Meigs,  1  Cow.  G45,  where  the  liability  of  such  an  agent 
was  attempted  to  be  restricted,  that  if  by  the  engagement  the 
agent  became  a  debtor  absolutely,  as  if  he  were  himself  the  pur- 
chaser, he  would  bo  bound  for  the  remittance  of  the  money,  as  well 
as  for  its  payment  by  the  buyer.  "  This  arises  from  the  general 
princij>lo,  that  the  debtor  is  bound  to  make  payment  to  his 
creditor,  and  consequently,  if  he  remits  a  bill  which  turns  out  of 


Chap.  IV  ]     Lewis  Beothers  &  Co.  vs.  Beehme.  713 

no  avail,  it  is  no  payment.  It  does  not  discharge  a  precedent 
debt,  nnless  it  be  so  expressly  agreed  between  the  parties."  (1 
Salk.  124;  2  Johns.  Gas.  441;  Glenn  vs.  Smith,  2  Gill  &  Johns. 
493,  20  Am.  Dec.  452);  or  unless  the  creditor  parts  with  the  bill, 
or  is  gnilty  of  laches,  to  the  prejudice  of  the  debtor,  in  not  present- 
ing it  for  acceptance  or  payment  in  due  time. 

Of  course,  the  agent,  acting  under  a  commission  del  credere, 
where  the  goods  have  been  sold  on  an  authorized  credit,  cannot  be 
required  to  account  to  his  principal  before  the  expiration  of  the 
credit  given  to  the  buyer.  And  if  the  money  which  comes  into  his 
hands  be  remitted  under  special  instructions  from  the  principal, 
then  it  will  be  at  the  risk  of  the  latter,  provided  the  instructions 
are  observed  with  proper  caution  and  diligence  on  the  part  of  the 
agent.  But,  in  this  case,  it  is  not  pretended  that  there  were  any 
special  instructions  in  regard  to  the  manner  of  remitting  the  money 
received  by  the  defendant.  The  remittance  therefore  was  at  his 
risk,  as  it  would  be  of  any  other  debtor  remitting  funds  to  dis- 
charge a  debt  due  by  him. 

Such  being  our  view  in  regard  to  the  liability  of  the  defendant 
as  an  agent,  acting  under  a  commission  del  credere,  we  are  of 
opinion  that  there  was  error  committed  by  the  court  below  in  refus- 
ing to  grant  the  first  prayer  of  the  plaintiffs,  which  was  intended 
to  present  the  case  as  within  the  principle  of  Grove  vs.  Dubois  and 
Mackenzie  vs.  Scott,  and  particularly  the  latter,  to  which  this  case 
bears  a  strong  analogy. 

But  as  it  has  been  earnestly  contended  in  argument  that  the  con- 
tract del  credere  only  extends  to  the  payment  of  the  price  of  the 
goods,  and  not  to  the  remittance  of  the  money  to  the  principal,  and 
the  court  below  having  so  instructed  the  jury,  let  us  examine  the 
case  briefly  upon  that  supposition,  in  order  to  determine  whether 
the  defendant  be  not  liable,  as  indorser  of  the  gold  draft  trans- 
mitted to  the  plaintiff. 

The  defendant,  upon  collecting  the  amount  due  from  Akers, 
placed  the  money  in  his  own  account  with  his  bankers,  and  pur- 
chased of  them  the  gold  draft,  that  was  afterward  dishonored,  by 
a  cheek  on  his  account.  This  draft  he  caused  to  be  made  payable 
to  his  own  order,  without  reference  to  his  character  as  agent,  and 
after  indorsing  it  to  the  plaintiffs,  or  their  order,  it  was  transmitted 
to  them  to  pay,  not  only  the  price  of  the  goods  sold  to  Akers,  but 
a  balance  due  from  the  defendant  himself.  The  draft  proving 
worthless,  and  having  been  purchased  without  special  directions. 


714  Cases  on  Agency.  [  Book  V 

what  is  the  liability  of  the  defendant  by  reason  of  his  unqualified 
indorsement? 

Judge  Story,  in  his  work  on  Agency,  section  157,  states  the 
rule  as  an  unqualified  one,  that  an  agent,  though  known  as  such, 
who  indorses  a  bill  or  note  generally,  makes  himself  personally 
responsible;  '*  for,  in  such  a  case,  although  he  is  a  known  agent, 
the  making,  or  accepting,  or  indorsing  of  an  instrument,  is 
treated  as  an  admission  that  it  is  his  personal  act,  not  only  in 
respect  to  third  persons,  but  also  in  respect  to  his  principal."  And 
for  this  proposition,  as  stated,  he  cites  many  respectable  authori- 
ties. So  Chitty,  in  his  work  on  Bills,  on  page  46,  states  the  same 
general  principle,  and  says:  "If  a  person  employed  by  the  plaintiff 
to  purchase  bills  for  him,  obtain  them  payable  to  himself  and 
indorses  them  generally,  he  will  be  liable  upon  that  indorsement, 
even  to  his  own  employer,  although  he  had  no  guarantee  commis- 
sion;" and  the  court  in  deciding  one  of  the  cases  referred  to, 
observed  that  the  defendant  might  have  specially  indorsed  the  bill 
sa)/s  recours,  and  not  having  thought  fit  to  do  so,  he  was  personally 
liable.  And  for  other  authorities,  supporting  the  same  general 
proposition,  see  Smith  on  Mercantile  Law,  1C4;  Russell  on  Brokers 
and  Factors,  2G3,  2G4;  Parsons  on  Notes  and  Bills,  102. 

Notwithstanding,  however,  the  rule  is  thus  generally  and 
unqualifiedly  stated,  we  think,  on  the  more  recent  authorities,  it 
is  not  to  be  applied,  as  between  the  principal  and  agent  themselves, 
without  some  limitation.  The  indorsement,  of  course,  if  unquali- 
fied, is  to  be  taken  as  importing  jprma/acte  liability  on  the  part  of 
the  agent.  lie  should  be  allowed  to  show,  however,  as  matter  of 
defense,  that  it  was  not  the  intention  that  he  should  be  personally 
charged  by  his  indorsement,  and  if  there  be  no  intention  to  create 
personal  liability,  none  will  exist  as  between  himself  and  his 
princijjal.  "Whether  such  intention  exists  will,  in  all  cases,  depend 
upon  the  circumstances  of  the  transaction.  But,  as  was  said  by 
Mr.  Chief  Justice  Tilgiiman,  in  Ilills  vs.  O'llara,  1  S.  &  R.  32, 
the  circumstances  should  be  clear  and  strong,  to  take  off  the  pre- 
sumption which  arises  from  the  indorsement.  See  the  case  of 
Casiri'jue  vs.  Batligieg,  10  E.  F.  Moore  94,  before  the  i)rivy 
council. 

Such  being  the  law,  the  next  question  is,  has  the  liability  of  the 
defendant   been   fixed   by   proper   evidence  of  duo   demand  and 
notice? 
No  direct  proof  of  demand  and  notice  was  offered  at  the  trial. 


Chap.  IV  ]     Lewis  Brothers  &  Co.  vs.  Brehme.  715 

In  the  absence  of  snch  evidence,  the  liability  was  sought  to  be 
fixed  by  reason  of  the  conduct  and  declarations  of  the  defendant 
snbseqiicntly  to  the  protest  of  the  draft,  The  plaintiff's  second 
prayer  enumerates  the  facts  that  were  supposed  to  have  fixed  the 
defendant's  responsibility  as  indorser,  and  whether  they  are  suffi- 
cient for  that  purpose  is  the  question  to  be  decided. 

If,  in  point  of  fact,  there  had  been  no  demand  and  notice  of  dis- 
honor, or  insufficient  demand  and  notice,  we  think  this  second 
praj^er  defective,  because  it  docs  not  submit  to  the  jury  to  find 
whether  the  defendant  was  fully  informed,  at  the  time  of  the 
promise  and  other  conduct  relied  on,  of  all  the  facts  and  circum- 
stances of  the  neglect  to  make  demand  and  to  give  the  notice.  The 
promise  and  other  circumstances  stated  in  this  prayer  would  cer- 
tainly be  sufficient  to  charge  the  defendant  as  indorser,  if  he 
possessed  full  knowledge  at  the  time.  Without  such  knowledge, 
however,  his  promise  or  acknowledgment  would  not  bind  him.  It 
is  therefore  essential  in  this  aspect  of  the  case  that  the  fact  of 
knowledge  be  found  by  the  jury,  in  addition  to  the  fact  of  the 
defendant's  treating  the  debt  as  his  own  and  promising  to  pay  it  to 
the  plaintiffs.  Beck  vs.  lliompson,  4  H.  &  J.  531;  1  Parsons  on 
Notes  and  Bills,  595,  and  the  authorities  there  cited. 

But  if  the  party  is  sought  to  be  charged  on  his  indorsement  and 
his  promise  or  assumption  be  used  as  evidence  of  the  previous 
demand  and  notice,  a  different  principle  applies.  In  such  case, 
any  promise  to  pay,  or  admission  made  by  the  indorser  that  he  con- 
tinues liable,  subsequent  to  the  dishonor,  is  good  evidence  upon 
which  to  found  a  presumption  that  everything  has  been  properly 
done  to  render  him  liable.  This  is  a  principle  now  well  established. 
As  in  the  case  of  Lundie  vs.  Rolertson,  7  East,  231,  which  was  an 
action  by  an  indorsee  against  an  indorser,  and  the  only  evidence  of 
notice  of  dishonor  being  the  promise  of  the  defendant.  Lord  Ellek- 
BOROUGH  said:  ''When  a  man,  against  whom  there  is  a  demand, 
promises  to  pay  it,  for  the  necessary  facilitating  of  business  between 
man  and  man,  every  thing  must  be  presumed  against  him.  It  was 
therefore  to  be  presumed  prima  facie,  from  the  promise  so  made, 
that  the  bill  had  been  presented  for  payment  in  due  time  and  dis- 
honored, and  that  due  notice  had  been  given  of  it  to  the  defendant." 

And  so  in  the  case  Hicks  vs.  Becmforf,  4  Bing.  (N.  C.)  229, 
where  the  question  was  similar  to  that  in  Lundie  vs.  liohrrtson, 
TiNDALL,  C.  J.,  said:  *'  The  cases  go  on  this  point  only:  that  if, 
after  the  dishonor  of  the  bill,  the  drawer  distinctly  promises  to  pay. 


716  Cases  ox  Agexct.  [  Book  V 

that  is  evidence  from  which  it  may  be  inferred  he  had  received 
notice  of  the  dishonor,  because  men  are  not  prone  to  make  admis- 
sions against  themselves;  and,  therefore,  when  the  drawer  promises 
to  pay,  it  is  to  be  presumed  he  does  so  because  the  acceptor  has 
refused." 

This  presumption,  however,  is  one  of  fact  for  the  jury,  and  not 
an  absolute  legal  conclusion  to  be  drawn  by  the  court.  It  is  prima 
facie  only,  and  liable  to  be  rebutted.  4  Bing.  (N.  C.)  229;  Booth 
vs.  Jocobs,  3  Nev.  &  Man.  351;  Picken  vs.  Gralum,  1  Cr.  &  Mee. 
728;  Brownell  vs.  Bonnerj,  1  Q.  B.  39. 

If  no  demand  had  been  made  and  notice  given,  the  defendant 
would  be  entitled  to  prove  the  omission,  and  the  further  fact  that 
his  promise  or  acknowledgment  had  been  made  without  knowledge 
of  the  plaintiU's  neglect  in  this  respect,  and  thus  rebut  the  pre- 
sumption. The  jury  should  be  required  to  find  from  the  evidence 
whether  due  demand  and  notice  had  occurred,  as  ground  of  the 
plaintiff's  right  to  recover.  This  being  so,  the  plaintiff's  second 
prayer  is  also  erroneous  in  not  requiring  due  demand  and  notice  to 
be  found  by  the  jury.  Instead  of  making  the  right  of  recovery 
depend  upon  the  legal  conclusion  to  be  drawn  from  the  facts  stated, 
the  jury  should  have  been  instructed  that  it  was  competent  to 
them,  from  the  facts  enumerated,  if  found  to  exist,  to  infer  and 
conclude,  as  matter  of  fact,  that  due  demand  had  been  made  and 
notice  of  dishonor  given,  and  if  they  should  so  find,  that  then  the 
plaintiffs  were  entitled  to  recover.  It  follows,  therefore,  that  the 
plaintiff's  second  prayer  was  properly  rejected  by  the  court  below. 

It  results  necessarily  from  what  has  been  said  that  the  defend- 
ant's first  prayer  was  erroneous,  and  should  not  have  been  granted. 
It  assumed  that  the  contract  resulting  from  the  del  credere  commis- 
sion was  discharged  in  the  payment  of  the  money  by  Akors  to  the 
defendant.  This,  as  we  have  seen,  was  an  erroneous  view  of  the 
law.  It  also  follows,  from  what  we  have  said  in  reference  to  the 
plaintiff's  second  prayer,  that  the  second  prayer  of  the  defendant 
should  not  have  been  granted.  It  assumed  that  the  defendant 
could  not  be  held  liable,  after  the  receipt  of  the  money  from  Akers, 
either  by  virtue  of  the  commission  del  credere,  or  his  indorsem.ent 
of  the  draft,  if  ho  used  ordinary  diligence  in  transniilting  the 
money  to  the  plaintiffs.  This,  as  we  have  shown,  is  not  maintain- 
able. The  judgment  below  will  bo  reversed,  and  a  new  trial 
awarded* 

Judgment  reversed,  and  new  trial  awarded. 


Oliap.  IV]  McGeaft  vs.  Rugee.  717 

lY. 

factor's  libit. 


(60  Wisconsin,  406,  50  Am.  Rep.  378.) 

McGRAFT  vs.  RUGEE. 

(Supreme  Court  of  Wisconsin,  January,  188J^,) 

Replevin.  The  opinion  shows  the  points.  The  plaintiff  had 
judgment  below. 

Cotzhausen,  Sylvester,  Schreiler  £  Jones,  for  appellant. 

Johnson,  Rietirock  (&  Halsey,  and  L.  N,  Keating,  for  respondent. 

Cassodat,  J.  An  agent  employed  to  sell  or  to  purchase  and 
sell,  goods  or  other  personal  property  intrusted  to  his  possession, 
by  or  for  his  principal,  for  a  compensation,  commonly  called 
factorage  or  commission,  may  properly  be  regarded  as  a  factor. 
Story,  Agency,  §§  33-34a;  Edwards,  Factors,  §  1;  Wharton, 
Agency,  §  735.  Here  the  duties,  powers  and  compensation  of  the 
factors  and  their  relation  to  their  principals  were  originally 
regulated  by  agreement.  True,  there  were  some  departures  after 
the  business  had  continued  for  a  while,  but  there  is  nothing  to 
indicate  any  change  as  to  the  title  of  the  property,  or  the  measure 
or  source  of  compensation. 

Undoubtedly  a  factor  is  entitled  to  retain  goods  in  his  possession 
as  such  until  his  advances,  expenses  and  commissions  are  paid,  and 
this  right  is  not  limited  to  charges  on  the  particular  consignment 
of  goods,  but  covers  a  general  balance  on  the  accounts  between  the 
factor  and  the  principal,  so  far  as  concerns  the  business  of  factor- 
age. Whart.  Agency,  §  767;  Edwards,  Factors,  §§  71,  72;  Story 
Agency,  §  376;  Matthews  vs.  Menedger,*%  McLean,  145;  Bryce  v€. 
Brooke,  26  "Wend.  374;  Kruger  vs.  Wilcox,  1  Amb.  252;  Jordan  vs. 
James,  5  Ohio,  99;  Weed  vs.  Adains,  37  Conn.  378.  The  statute 
of  this  State  in  this  respect  would  seem  to  be  in  confirmation  of 
the  common  law.     R.  S.,  §3345. 

But  where  the  general  balance  on  the  accounts  of  the  factorage 
is  largely  against  the  factor  and  in  favor  of  the  principal  the 
former  can  have  no  lien  upon  the  property  in  his  possession,  for  he 
has  no  enforceable  claim.       Godfrey  vs.  Furzo,  3  P.  Wms.  185; 


718  Cases  on  Agency.  [  Book  V 

Zinch  vs.  Walker,  2  Wm.  Bl.  1154;  EoUingworth  vs.  Tooke,  2  II. 
Bl.  501;  Walker  vs.  Biich,  6  Term,  258;  Weed  vs.  Adams,  supra', 
Jordan  vs.  James,  supra;  Enoch  vs.  Wehrkamp,  3  Bosw.  398; 
Beebe  vs.  Mead,  33  N.  Y.  587.  In  such  case  the  factor's  riglit  of 
retention  and  sale  is  merely  to  reimburse  himself  for  the  balance, 
his  due  on  the  general  account  of  the  factorage.  Broiun  vs.  Mc- 
Gran,  14  Pet.  479;  Overton  Liens,  §  105. 

Xeither  can  a  factor  who  is  indebted  to  his  principal  on  account 
of  previous  sales  acquire  a  particular  lien  upon  goods  subsequently 
sent  to  him  for  sale,  for  expenses  incurred  on  account  of  them, 
unless  such  expenses  exceed  the  amount  of  his  indebtedness. 
Edwards,  Factors,  §  72;  Enoch  vs.  Wehrkamp,  supra.  The  lieu  of 
an  agent  and  factor  on  the  goods  of  his  principal  for  specific 
expenses  does  not  exist  when  the  general  balance  of  account  ia 
against  him.  Hid.  'We  must  therefore  hold  that  where  a  factor 
is  largely  indebted  to  his  principal  on  account  of  the  factorage  and 
thereupon  voluntarily  makes  advances  in  the  business  not  exceed- 
ing such  indebtedness,  such  advances,  being  made  for  and  in 
behalf  of  his  principal,  must  be  deemed  to  have  been  so  made  by 
the  factor  in  liquidation  of  his  own  indebtedness  pro  tanto. 

Here  by  special  agreement,  the  commissions  of  the  factors  were 
limited  to  the  net  profits  of  the  business.  There  is  however  noth- 
ing to  indicate  that  there  were  any  such  profits,  but  the  reverse. 
The  court  moreover  found  that  at  the  time  of  the  levy,  the  factors 
were  largely  indebted  to  the  plaiutifi's  upon  the  general  account  of 
their  business  as  factors,  after  crediting  them  with  all  advances 
made  by  them  or  either  of  them  in  the  business.  "We  cannot  upon 
the  evidence  disturb  this  finding.  The  fact  stands  confessed, 
that  the  general  balance  against  the  factors  and  in  favor  of  the 
plaintiffs  was  upwards  of  $20,000, 

We  are  asked  to  assume  that  this  wide  discrepancy  was  owing  to 
losses  for  which  the  factors  were  in  no  way  at  fault,  and  hence  in 
no  way  responsible,  merely  because  the  plaintiffs,  after  the  com- 
mencement of  this  action,  turned  over  to  the  factors  the  outstand- 
ing credits  and  accounts  of  the  business,  amounting  it  is  said  to 
12,500.  The  true  value  of  such  credits  and  accounts  does  not 
appear,  but  assuming  that  they  were  worth  what  is  claimed,  yet 
that  fact  is  insunicicnt  to  change  the  character  of  the  general  bal- 
ance against  the  factors.  If  this  largo  balance  against  the  factors 
was  owing  to  losses  for  which  they  were  not  responsible,  but  which 
should  have  fulJen  upon  the  plaintiffs,  then  the  burden  of  proving 


Chap.  IV]  McGkaft  vs.  Eugeb.  719 

such  facts  was  upon  the  defendants.  They  have  failed  to  make 
Buch  proof,  and  we  are  not  at  liberty  to  supply  it  by  mere  infer- 
ences, and  remote  at  that. 

Had  the  evidence  shown  a  general  balance  due  the  factors,  still 
it  would  have  been  a  grave  question  whether  it  could  have  been 
reached  by  an  execution  against  the  factors  being  levied  upon  the 
lumber,  shingles,  lath,  etc.,  in  their  possession  as  such  factors. 
"Whart.  Agency,  §  757  and  cases  there  cited;  U.  S.  vs.  Villalonga, 
23  Wall.  42;  Jordan  vs.  James,  5  Ohio,  99.  These  authorities  in 
effect  hold  that  the  factor's  right,  although  sometimes  called  a 
special  property,  yet  is  never  regarded  as  a  general  ownership.  It 
is  liable  to  be  defeated  at  any  time  by  the  principal  paying 
advances  made  and  liabilities  incurred  and  reclaiming  possession  of 
the  property.  The  factor's  right,  at  most,  is  nothing  more  than 
the  ownership  of  a  debt  secured  by  a  lien  or  charge  upon  the  prop- 
erty in  his  possession.  It  would  seem,  therefore,  that  such  debt 
can  at  least  be  more  appropriately  reached  by  some  other  process. 
But  it  is  unnecessary  here  to  determine  the  question,  and  hence 
we  reserve  it  for  future  consideration. 

By  the  court.     The  judgment  of  the  circuit  court  is  affirmed. 

Judgment  af^med. 


INDEX. 


ACCEPTING  BENEFITS, 

effect  of,  as  ratification:    See  Ratificatioii. 

A.CCOUNT, 

duty  of  agent  to:  Jett  vs.  Hempstead,  496. 

illegality  of  transaction  does  not  excuse:  Kieweri  vs.  RindsTcopf,  497. 

duty  of  factor  to  render:  Cooley  vs.  Belts,  702. 

duty  of  agent  to  pay  money  to  third  person:  Eerrickvs.  Oallagher,  513. 

■when  agent  must  account  to  principal  for  profits:  Davis  vs.  Hamlin,  461; 

Gardner  vs.  Ogden,  485. 
third  person  receiving  principal's  property  from  agent  must  account  to 

principal:  Farmers'  Bank  vs.  King,  590. 
thu-d  person  colluding  with  agent  must  account  to  principal:  Boston 

vs.  Simmons,  598;  Mayor  of  Salford  vs.  Lever,  601. 

ACCOUNTING, 

not  required  under  unlawful  contract:  Byrd  vs.  Hughes,  23. 

ACCOUNT  RENDERED, 

what  constitutes:  Talcott  vs.  Chew,  689. 
ACQUIESCENCE, 

as  ratification:  Hazard  vs.  Spears,  182;  Eeynvs.  QHagen,  188;  JoM* 
vs.  Atkinson,  192. 

ACTION, 

right  of  principal  to  sue  on  contract  made  by  agent:  Huntington  vs. 

Knox,  587. 
to  sue  third  person  who  has  colluded  with  agent  to  defraud  him:  Bos- 

ton  vs.  Simmons,  598;  Mayor  of  Salford  vs.  Lever,  601. 
right  of  agent  to  sue  on  contract  made  by  him:  Rhodes  vs.  Blackiston^ 

584;  Bowe  vs.  Rand,  257. 
principal's  right  superior  to  that  of  agent:  Id. 
right  of  auctioneer  to  sue  in  his  own  name;  Thompson  vs.  Kelly,  653. 

of  broker:  Fairlie  vs.  Fenton,  669. 
against  joint  principals,  how  may  be  brought:  Davison  vs.  Holden,  47. 

ADMISSIONS,  (See  Evidence.) 

of   agent,   when  evidence  against    principal:     Vicksburg   R.  R.   vs. 
O'Brien,  572;  Hatch  vs.  Squires,  106. 

ADOPTION, 

of  unauthorized  act:    See  Ratotoatioii. 
46  721 


722  Lndex. 

ADVANCES, 

of  factor  to  principal,  factor  mar  ene  for:    Dolan  vs.  Thompson,  684 
factor  may   sell  to   reimburse   himself   for:     Talcott  vs.  dieiv,  6S9; 
Lehman  vs.  Pritchett,  693;  Hatcher  vs.  Comer,  698;  Davis  vs.  Kobe, 
700. 
ADVERSE  INTEREST, 

agent  must  not  acquire  interest  adverse  to  principal:  Davis  va, 
Hamlin,  461;  Gardner  v.  Oyden,  465. 

ADVERTISEMENT, 

of  auctioneer  does  not  amount  to  a  contract:    Harris  vs.  NicJcerson, 
659. 
AGENCY,  (See  Agent;  Principal  and  Agent.) 

for  what  purjioses,  may  be  created:  Eice  vs.  Wood,  13;  Atlee  va. 
Fink,  14;  Mills  vs.  Mills,  17;  Elkhart  County  Lodge  vs.  Crary, 
18;  Byrd  vs.  Hughes,  23. 

AGENT, 

who  is:  Eegina  va.  Walker,  1;    Wakefield  va.  Fargo,  4;  Singer  Mfg. 
Co.  va.  Rahn  ,  8;  Wilson  va.  Owens,  9;  Rowe  vs.  Rand,  257;  Wil- 
cox &  Gills  Co.  ra.  Eiiing,  283. 
contract  to   become,    for  what   purposes   valid:   Rice  va.   Wood,  13; 
Atlee  va.  Fink,  14;  Mills  vs.  Mills,  17;  Elkhart   County  Lodge  va. 
Crary,  18;   Byrd  vs.  Hughea,  23. 
who  may  appoint:  St.  Andrews  Bay  Land  Co.  vs.  Mitchell,  26;  Lucaa 
vs.  Bank  of  Darien,21;  Trueblood  vs.  Trucblood,  29;  Weisbrod  vs. 
Ry.  Co.  8 1 ;  Nash  vs.  Mitchell,  33. 
who  may  be:  Lyon  vs.   Kent,  37;  Cox  vs.  Hoffman,  89;   Deakin  vs. 

Undenvood,  08;  Killingsu-ortJi.  vs.  Portland  Tru.st  Co.  40. 
joint  principals:    See  Joint  Principals. 

joint  agentd:  Hawley  vs    Keeler,   60;  First  National  Bank  vs.   Mt. 
Tabor,  53;  McNeil  va.  Boston  Chamber  of  Commerce,  63;  Deakin  va. 
Undericood,  68. 
wife  as:  Benjamin  vs.  Dockham,  71;  Benjamin  vs.  Benjamin,  73. 
husband  as;  McLaren  vs.  Hall,  77. 

child  as:  Johnson  vs.  Stone,  78;  Bennett  va.  Gillette,  79. 
appointment  of    by  act  of  parties:   Pole  va.   Lcask,   81;   Graves  va. 
Horton,   82;  Johnson  vs.  Hurley,  8-i;  Crane  va.   Gruenewald,   87; 
Bickford  vs.  Menicr,  93. 
sealed  aiitliority,  when  necessary:  Long  va.  Hartwcll,  92. 
to  fill  blanks:  Phelps  vs.  Sullivan.  101;  Brcckenridge  va.  Lexoia, 

103;   Drury  va.  Foster,  120. 
to  si^n  deed  in  principal's  presence:   Gardner  vs.  Gardner,  100. 
evidence  of  ai)iKpintnient:   Hatch  va.  Squires,   106;  Howe  Machine 
Co.  vs.  Clark,  107. 
ratification  of  liis  acta:    See  Ratification. 
dcle;,Mtioii  of  autliority  by:     See  IJKLEGATION. 
liability  for  m:tj  of  his  eub-agent:    Barnard  vs.  Coffin,  219;  Cummina 

va.  Heald,  247;  Exchange  Nat.  Bank  vs.  Third  Nat.  lUiuk,  239. 
termination  of  autliority:    See  Tkkmination  of  Agency. 


Index.  723 

Agent — Continued. 

general  agent,  who  is:    Butler  vs.  Maples,  340;  Hatch  vs.  Taylor,  845; 

Savings  Fund  Society  vs.  Savings  Bank,  871. 

special  agent,  who  is:    Butler  vs.  Maples,  840;  Hatch  vs.  Taylor,  845; 

Bryant  vs.  Moore,  355;  Savings  Fund  Society  vs.  Savings  Bank,  371. 

general  agent  binds  his  principal  by  acts  within  scope  of  authority: 

Butler  vs.  Maples,  340;  Hatch  vs.  Taylor,  845;  Towle  vs.  Leavitt,  358. 

ALIENS, 

may  be  agent:    Lyon  vs.  Kent,  37. 
AMBIGUOUS  AUTHORITY, 

how  binds  principal:    Craighead  vs.  Peterson,  873. 
APPARENT  AUTHORITY. 

principal  bound  to  third  persons  by:    Johnson  vs.  Hurley,  84;  Graves 
vs.  Horton,  82;  Crane  vs.  Gruenewald.  87;  Bickford  vs.  Menier,  93; 
Toicle  vs.  Leavitt,  858;  Wheeler  vs.  McGuire,  303;  Hubbard  vs.  Ten- 
brook,  367;  Watteau  vs.  Fenioick,  369. 
may  be  greater  than  actual  authority;    Bickford  vs.  Menier,  93. 
to  receive  payment  of  mortgage:    Crane  vs.  Gruenewald,  87 
to  borrow  money:    Bickford  vs.  Menier,  93. 
to  fill  blanks:  Phelps  vs.  Sullivan,  101;  Breckenridge  vs.  Lewis,  103; 

Drury  vs.  Foster,  120. 
to  execute  deed:    Gardner  vs.  Gardner,  100. 
to  purchase:    Butlei  vs.  Maples,  340. 
to  sell  chattels:    Smith  vs.  Clews,  396;  Levi  vs.  Booth,  891;  Towle 

vs.  Leavitt  358. 
to  collect:    McKindly  vs.  Dunham,  899. 

to  promise  commissions  on  subsales:    Hibbard  vs.  Peek,  403. 
to  take  other  goods  in  part  pay:    Billings  vs.  Mason,  406. 
secret  instructions  cannot  affect:     Butler  vs.   Maples,  340;  Hatch  vs. 
Taylor,  345;  Bryant  vs.  Moore,  355;   Hubbard  vs.   Tenbrook,   367; 
Watteau  vs.  Fenunck,  369. 
burden  of  showing,  when  in  excess  of  real  authority,  on  third  person: 

Wheeler  vs.  McGuire,  3G2. 
to  be  limited  to  acts  of  like  kind:    Graves  vs.  Horton,  82;  McKindly  vs. 
Dunham,  399 
APPEARANCE, 

See  Attorneys. 
APPOINTMENT  OF  AGENT, 

can  be  only  by  act  of  principal:  Pole  vs.  Leask,  81;  Graves  vs.  Horton, 

82;  Johnson  vs.  Hurley,  84. 
implied  from  acts  of  alleged  principal:   Graves  vs.  Horton,  82;  Johnson 
vs.  Hurley,  84;    Crane  vs.  Grueneivald,  87;    Bickford  vs.  Menier,  93; 
Breckenridge  vs.  Lewis,  103. 
sealed  instrument,  when  necessary  for:  Long  vs.  Hartwell,  93. 
written  instrument,  when  necessary:  Long  vs.  Harticdl,  92. 
to  fill  blanks:  Di-ary  vs.  Foster,  120;  Phelps  vs.  Sullivan,  101;  Brecken- 
ridge vs  Lewis,  103. 
to  sign  deed  in  principal's  presence:   Gardner  vs.  Gardner,  100. 


724  Index. 

APPOrNTMZNT  OF  AGENT — Continued. 

evidence  of:  Hatch  vs.  Sgnires,  106;  Hotce  Machine  Co.  vs.  Clark,  107; 

Sihhald  vs.  Bethlehem  Iron  Co.,  301. 
ratilication  of  unauthorized  acts:   See  RATIFICATION. 

APPRENTICE, 

how  compares  with  agent  and  servant:  Wakefield  vs.  Fargo,  4. 

ASSIGNMENT, 

of  agency,  whether  contrary  to  public  policy:  Peterson  vs.  Christensen, 
234. 
ASSOCIATIONS, 

liability  of,  for  acts  of  agents:  Ash  vs.  Ouie,  46;  Davison  vs.  Holdent  47. 

ATTACHMENT  (See  Attorneys). 

attach:ment  lien, 

effect  of  ratification  upon:  Cook  vs.  Tullis,  160. 

attorneys, 

non-residents  not  admitted  as:  Matter  of  Mosness,  613. 

are  ofEcers  of  court:  Id. 

appearance  of  presumed  to  be  authorized:  Reynolds  vs.  Fleming,  QlJi. 

implied  powers  of:  Moulton  vs.  Bowker,  619;  Kirk's  Appeal,  621. 

liability  for  sub-agents:  Cunwiins  vs.  Heald,  247. 

liability  for  money  collected:  Nalter  vs.  Dolan,  623. 

fiduciary  relations  witli  client:  Siout  vs.  Smith,  628. 

compensation  of:  Stanton  vs.  Ernbrey,  631. 

contingent  fees:  Stanton  vs.  Embrey,  631. 
lien  of:  Goodrich  vs.  McDonald,  633;  In  re  Wilson,  63a 

retaining  lien,  natui'e  of:  Id. 

charging  Uen,  nature  of;  Id. 

waiver  of:  Goodrich  vs.  McDonald,  633. 

enforcement  of:  In  re  Wilson,  638;  Weeks  vs.  Judges,  648. 

auction, 

authority  to  sell  does  not  warrant  sale  by  auction:  Towle  vs.  Leavitt, 

858. 

AUCrriONEERS, 

implied  powers  of:  Bttsh  vs.  Cole,  650;  Boinest  vs.  Leignez,  656. 
liability  for  exceeding:  Id. 

liability  for  misrepresenting  property  sold:   Thompson  vs.  Kelly,  653. 
right  to  recover  deposits  agreed  upon:  'Ihompson  vs.  Kelly,  653. 
lien  of:  Thompson  vs.  Kelly,  653;  Webb  vs.  Smith,  661. 
no  power  to  relea:>e  puiuhaser:  Boinest  vs.  Leiy>iez,  055. 
liability  of  for  selling  goods  of  a  stranger:  IU<jtjins  vs.  Lodge,  656. 
for  not  belling  as  agreed:  Uarris  vs.  Nicker  son,  659. 
AUTHORITY, 

Bee  Ai'PoiNTMENT  OF  Agents;  Seal;  Implied  AtTmoiUTY;  ArrAnENT 
AUTUOiiiTY;  Wiutten  AuTnoiUTY;  Agent;   Constuuction  of  Au- 

TIIOHITY. 

how  conferred:    See  Appointment  of  Agents;  Ratification;  Agent. 
nature  of:    Butler  vs.  Maples,  840;  Hatch  vs.   Taylor,  845;  Bryant  vs. 
Moore,  865. 


IKDBX.  725 

AuTHOElTY — Continued. 

is  incident  of  character  imposed  by  principal:   BUbhard  vs.  Peek,  408. 

general,  how  differs  from  special:  Butler  vs.  Maples,  340;  Hatch  va. 
Taylor,  845;  Bryant  vs.  Moore,  855;  Savings  Fund  Society  vs.  Sav- 
ings Bank,  371, 

construction  of:    See  Constkuction  of  Authority, 

evidence  of:    See  Evidence. 

apparent;    See  Apparent  Authority. 

implied,  must  be  limited  to  some  kind  as  in  acts  from  which  inferred: 
Graves  vs.  Horton,  82. 
what  suilicient  to  warrant  inference  of:    Johnson  vs.  Hurley,  84. 
juiy  to  pass  upon:    Savings  Fund  Society  vs.  Savings  Bank,  371. 

ascertaining,  party  dealing  with  agent  bound  to  ascertain  his  authority: 
Towle  vs.  Leavitt,  858;  Wheeler  vs.  McGuire,  362;  Craighead  va. 
Peterson,  873. 

BAILEE, 

no  implied  authority  to  sell:    Levi  vs.  Booth,  391;  Smith  va.  Clews,  396. 

BANK, 

when  chargeable  with  knowledge  of  its  directors:     Innerarity  vs. 

National  Bank,  569. 
when  liable  to  principal  for  his  money  deposited  by  agent:     Farmer!? 

Bank  vs.  King,  590;  Baker  vs.  N.  Y.  Bank,  596. 
liability  for  neglect  of  correspondent  bank:    Exchange  Nat.  Bank  vs. 

Third  Nat.  Bank,  239. 
BANKRUPTCY, 

of  principal,  revokes  agency:    Rowe  va.  Rand,  257. 

BILL  OF  LADING, 

liability  of  principal  for  fraudulently  issued  bills:  Bank  of  Batavia 
vs.  R.  R.  Co.,  576;  Friedlander  vs.  Ry.  Co.,  679. 

BLANKS, 

apparent  authority  to  fill:    Phelps  vs.  Svllivan,  101;  Breckenridge  vs. 
Leivis,  103;  Drury  vs.  Foster,  120. 
BOND  AND  MORTGAGE, 

apparent  authority  to  collect:    Crane  va.  Oruenewald,  87. 

BORROW, 

authority  to  borrow  money,  not  implied:    Bickford  vs.  Menier,  93. 

not  implied  from  authority  to  sell:    Bickford  vs.  Menier,  93. 
BRIBERY, 

of  agent:    See  CJOLLUSION. 
BROKER, 

who  is:  Sibhald  vs.  Bethlehem  Iron  Co..  801. 

evidence  of  appointment  of:  Id. 

dismissal  of:  Id. 

when  is  deemed  to  have  completed  his  undertaking:  Id;  Vinton  vs. 
Baldunn,  664;  Plant  vs.  Thompson,  666. 

wrongful  discharge  of:  Sibhald  vs.  Bethlehem  Iron  Co.,  801. 

commissions  of:  Id;  Rice  vs.  Wood,  13;  Bell  vs.  McConnell,  538;  Vinton 
va.  Baldwin,  664;  Plant  va.  Thompson,  666. 


726  Index. 

Bbokkr — Continued. 

double  commissions:   Id, 

acting  for  both  jiarties:   Rice  vs.  Wood,  12;   BeU  va.  McConnell,  688; 
Vinton  vs.  Jialdicin,  664. 

employment  of  two  or  more:  Ahem  vs.  Baker,  288. 

liability  for  acting  without  authority:  SiiJimons  vs.  More,  605. 

must  obey  instructions:  Clark  vs.  Cumming,  668. 

right  to  sue  on  contracts  made  by  him:  Fairlie  vs.  Fenton,  669. 

loan  broker:  Vinton  vs.  Baldwin,  664. 

real  estate  broker:  Plant  vs.  Thompson,  666. 
BURDEN  OF  PROOF, 

on  plaintiff  to  establish  agency:    Wheeler  vs.  McQuire,  862;    Pole  va, 
Leask,  81 ;  Johnson  va.  Hurley,  84. 

BUY, 

agent  to,  cannot  buy  of  himself:  Gardner  va.  Ogden,  465.  See  Fidelity; 

TUUSTKK;   ACCOUNTIKO. 

CARRIER, 

liability  of  on  bill  of  lading  fraudulently  issued  by  its  agent:   Bank  of 
Bataiia  vs.  Railroad  Co.,  576;  Friedlander  vs.  Railicay  Co.,  579. 

CESTUI  QUE  TRUST, 

right  to  follow  and  recover  trust  funds:    Farmers'  Bank  vs.  King,  690; 
Baker  va.  New  York  Bank,  596. 

CHECKS, 

See  Negotiable  Instruments. 

CHILD, 

implied  authority  of,  aa  parent's  agent:  Johnson  va.  Stone,  78;  Bennett 
vs.  Gillette.  79. 

CLERK, 

can  not  buy  estate  which  his  employer  is  agent  to  sell:    Gardner  vs. 
Ogden.  465. 

CLUBS, 

liability  of  for  contracts  of  members:    Aah  vs.  Guie,  46. 

COLLECTION, 

agent  for,  when  may  delegate:    Appleton  Bank  va.  McGilvray,  229: 
authority  for,  terminated  by  principal's  death:     Weber  vs.  Bridgman, 

831. 
agent  to  sell  has  not  implied  authority  to:    McKindly  vs.  Dunham,  899. 
notice  of  want  of  authority,  how  given:    Id. 

agent  for,  must  give  notice  of  collection:    Jett  va.  Hempatead,  496. 
muBt  account  for  money  collected:    Id. 
statute  of  limitations  runs  againHt,  when:     Id. 
liability  of  banks  for  defaults  in:    Exchange  Nat.  Bankva.  Third  Nat. 

Bank,  239. 
agent  f<jr,   liable  for  breach  of  instructiona:      Whitney  va.  Express 

Co.,  484;  I'asaano  va.  Acosta,  490. 
for  iii';-';lig(jnce:    Nixon  va.  Bogin,  492. 
COLLUSION, 

between  agent  and  third  person,  principal  may  avoid  contracts  made 


Index.  727 

CoixusiON — Continued. 

under:    Boston  vs.  Simmons,  698;  Mayor  of  Salford  va.  Lever,  601; 
Atlee  vs.  Fink,  14. 
COMMISSION  MERCHANT. 

who  is:    Lehvian  va.  Pritchett,  698. 
See  Factors. 
COMMISSIONS  (See  Compensation  of  Agent), 
of  loan  broker:     Vinton  vs.  Baldivin,  664. 
of  real  estate  broker:    Plant  vs.  Thompson,  668. 
of  merchandise  broker:    Sibbald  vs.  Iron  Co.,  801. 

COMMON  COUNCIL, 

cannot  delegate  its  powers:    Birdsall  vs.  Clark,  281. 

COMPENSATION  OF  AGENT, 

agent  entitled  to  compensation:    Bradford  vs.  Kimberly,  523. 

amount  may  be  fixed  by  contract:     Wallace  vs.  Floyd,  525. 

agent  continuing  after  expiration  of  term:    Id. 

ratification  of  act  entitles  agent  to  compensation:     Wilson  vs.  Dame, 

526. 
when  wrongfully  discharged:    Howard  vs.   Daly,    526;    Liddell  va. 

Chidester,  587. 
when  relation  terminated  by  death:    Griggs  vs.  Swift,  538. 
whether  agent  can  have  from  two  parties:    Rice  va.  Wood,  12;  Bell  va. 

McConnell,  538. 
COMPULSORY  AGENCY, 

of  wife:    Benjamin  va.  DockJiam,  71, 

CONDUCT, 

warrants  presumption  of  agency,  when:  Johnson  va.  Hurley,  84;  Grave* 
va.  Horton,  82;  Crane  vs.  Gruenewald,  87. 

CONFIDENTIAL  AGENT, 

incapacity  of,  to  deal  with  subject  of  his  agency:  Davik  vs.  Hamlin,  461; 
Gardner  vs.  Ogden,  465;  Greenfield  Bank  vs.  Simons,  476;  Rochester 
va.  Levering,  478. 
CONSIGNOR  AND  CONSIGNEE  (See  Factor). 

CONSPIRACY, 

between  agent  and  third  person  to  defraud  principal:   Atlee  va.  Fink, 
14;  Boston  vs.  Simmons,  598;  Mayor  of  Salford  va.  Lever,  601. 

CONSTRUCTION, 

of  statutes:  Wakefield  va.  Fargo,  4 
CONSTRUCTION  OF  AUTHORITY, 

is  for  the  court:  Savinga  Fund  Society  va.  Savinga  Bank,  871;  Lyon  va. 
Pollock,  378. 

written  authority  strictly  construed:   Craighead  va.  Peterson,  373;  Gil- 
bert vs.  How,  380;  Luvipkin  vs.  Wilson,  390. 

authority  limited  to  principal's  business:  Trust  Co.  vs.  Abbott,  376. 

instrument  to  be  read  in  light  of  surrounding  circumstances:  Lyon  va. 
Pollock,  378;  LeRoy  va.  Beard,  383. 

usage  may  afl'ect  how:  LeRoy  va.  Beard,  382;  Hibbard  va.  Peek,  403. 

of  authority  to  sell  land:  Deakin  va.  Underwood,  68. 


728  Index. 

CONSTEUCnON  OF  AUTHORITY — Continued. 

incidental  powers;  Huntley  vs.  Jilathias,  408. 
construction  of  particular  authorities: 
See  Sale;  Cou^ct;  Deed;  Manager;  Negotiable  iNSTRxmKNTS. 
CONSTRUCTIVE  NOTICE  (See  Notice  to  Agents), 
what  amounts  to:  Claflin  va.  Lenheim,  294. 
question  for  court,  when:  Id. 
for  jury,  when:  Id. 
CONSTRUCTS:  SERVICE, 

recovery  on  theory  of:  Howard  va,  Daly,  620, 
CONTINGENT  COifPENSATION, 

how  affects  validity  of  contracts:  Elkhart  County  Lodge  va.  Crary,  18; 
Stanton  va.  Embrey,  631. 
CONTINGENT  FEES, 

of  attorney:  Stanton  va.  Embrey,  631, 
CONTINUING  EMPLOYMENT, 

presumed  to  be  at  former  wages:   Standard  OU  Co.  va,  Oilbert,  278; 
Wallace  va.  Floyd,  525. 
CONTRACT,    (See  Negotlable  Instrument;  Deed;  Bill  of  Lading.) 
liability  of  agent  for  making  without  authority:    Kroeger  vs.  Pitcaim, 
501;  Simmons  vs.  More,  505;  Patterson  va.  Lippincott,  507;  Peters  va. 
Famsicorth,  887. 
whether  agent  liable  on  contract  itself:    Patterson  va.  Lippincott,  507. 
execution  of,  to  bind  principal:    Whitney  va.  Wyman,  452;  Brovm  v*. 
Bradlee,  454. 
CONTRACT  OF  AGENCY  (See  Yearly  Hiring), 

what  valid:    Rice  vs.  Wood,  12;  Atlee  vs.  Fink,  14;  Milh  vs.  Milla,  17; 

Elkhart  County  Lodge  vs.  Crary,  18;  Byrd  vs.  Hughes,  23. 
by  correspondence,  when  complete:    Howard  vs.  Daly,  526. 
for  definite  term  of  employment  when  employed:   Rhodes  va.  Forwoodt 
259;  Turner  va.  Goldsmith,  266;  Lewis  va.  Ina.  Co.,  269;  Norton  v*. 
Cowell,  281;  Liddell  va.  Chidester,  635. 

CONVERSION, 

what  constitutes:    Laverty  vs.  Snethen,  488. 

when  agent  liable  for:    Laverty  va.  Snethen,  486;  Stephens  w.  ElwoR, 

226. 
liability  of  auctioneer  for:    Higgimt  va.  Lodge,  656. 

CORPORATION, 

as  principal:    St.  Andrews  Bay  Land  Co.  vs.  Mitchell,  28. 

aa  agent:     Killingsirurlh  va.  Portland  Trust  Co.,  40. 

ratification  by:    McArthur  va.  Times  Printing  Co.,  128;  BeWa  Gap  R. 

R.  va.  Christy,  131. 
when  chargeable  with  knowledge  of  director:    Innerarity  vs.  National 

Bunk,  500. 
CORRUPTION,    (See  PUBUO  Pouoy;  Fideuty;  Agency.) 

of  agent,    contractb   leading  to  void:     Atlee  va.  JiHnk,  14;  Byrd  v. 

Hughes,  28. 


Index.  729 

CREDIT, 

agent  cannot  buy  upon  if  furnished  with  funds  to  pay:  Komorowaki 

V8.  Krumdick,  418;  Wheeler  vs.  McChiire,  3^2. 
power  of  factor  to  sell  upon:    Pinkhavi  vs.  Crocker,  676. 

DAMAGES, 

for  wrongful  discharge  of  agent:  Howard  vs.  Daly,  626;  lAddell  V8. 
Chidester,  535;  Standard  Oil  Co.  vs.  Gilbert,  273. 

none  when  relation  terminated  by  death:    Griggs  vs.  Sivift,  537. 

to  agent  for  not  being  permitted  to  complete  sale:  Durkee  vs.  Gunn, 
312. 

against  auctioneer  for  loss  of  a  bargain  caused  by  his  want  of  author- 
ity:   Bush  vs.  Cole,  650. 

to  principal  for  malicious  arrest  of  agent:    Railroad  Co.  vs.  Hunt,  G08. 

against  agent  for  acting  without  authority:  Kroeger  vs.  Pitcairn,  501; 
Simmons  vs.  More,  505. 

against  agent  for  his  torts  to  third  persons:  Delaney  vs.  Rochereau, 
514;  Osborne  vs.  Morgan,  518;  Stephens  vs.  Elwall,  226. 

for  breach  of  duty  of  fidelity:    Greenfield  Bank  vs.  Simons,  476. 

DEATH, 

terminates  agency  not  coupled  with  an  interest:   Hunt  vs.  Rousmanier. 

822;  Knapp  vs.  Alvord,  828;  Weber  vs.  Bridgman,  331. 
terminates  agency  not  coupled  with  an  interest:  Hunt  vs.  Rousmanier ^ 

822. 
no  damages  for  termination  of  agency  by:    Origgs  vs.  Swift,  537. 

DEBTS, 

liability  of  husband  for  debts  contracted  by  wife:  Benjamin  vs.  Dock- 
ham,  71. 
DECLARATIONS  OF  AGENT  (See  Evidence), 

not  admissible  to  show  his  authority:   Hatch  vs.  Squires,  106;  Howe 

Machine  Co.  vs.  Clark,  107;  Graves  vs.  Horton,  82. 
of  agent  when   admissible  against    principal:     Vicksburg  R.   R.  vs. 
O'Brien,  572;  Hatch  vs.  Squires,  106. 

DEED, 

authority  to  execute:  Long  vs.  Hartwell,  92;  Gardner  vs.  Gardner,  100. 

to  fill  blanks  in:  Drury  vs.  Foster,  120;  Phelps  vs.  Sullivan,  101. 

to  sign  in  principal's  presence:  Gardner  vs.  Gardner,  100. 

how  to  be  executed:  McClure  vs.  Herring,  429;  Knight  vs.  Clark.  484. 

authority  to  deliver,  how  conferred:  Phelps  V8,  Sullivan,  101. 
DEL  CREDERE  COMMISSION, 

liability  imposed  by:  Leivis  V8.  Brehme,  706. 
DELEGATION, 

delegated  power  can  not  usually  be  delegated:  Appleton  Bank  vs.  Mc- 
Gilvray,  229;  Warner  vs.  Martin,  678. 

agent  can  not  usually  apj.oint  sub-agent:  Appleton  Bank  vs.  McGil- 
vray,  229;  Warner  vs.  Martin,  678. 

usage  may  permit:  Appleton  Bank  vs.  McGilvray,  229. 

public  trusts  can  not  be  delegated:  Birdsall  vs.  Clark,  231. 

sale  of  interest  in  agency,  whether  opposed  to  public  pohcy:  Peterson 
vs.  Christensen,  234. 


730  Index. 

Delegation — Continaed. 

whether  rule  applies  to  factors:  HaTralson  V9.  Stein,  286. 

ministerial  or  mechanical  acts  may  be  delegated:   Grady  vs.  Insurance 

Co.,  :.^38. 
effect  of  as  to  liability  of  agent:  Exchtinge  Nat  Bank  vs.  Tliird  Nat, 

Bank,  239;  Barnard  vs.  <.c£in,  249. 
liability  of  attorney  for  correspondents:  Cummins  vs.  Ileald,  247. 
of  banks:  Exchange  Nat.  Bank  vs.  Tldrd  National  Bank,  239. 
DEMAND, 

when  necessary  before  etiing  agent:    Jett  vs.  Hempstead,  498, 
before  suing  factor:    Cooley  vs.  Beits,  702. 
DEPOSITS  IN  BANK, 

See  Bank;  Trust  Funds;  Account. 
DIRECTOR, 

when  knowledge  of,  imputed  to  corporation:    Innerarity  vs.  National 
Bank,  569. 
DISOBEDIENCE, 

to  instructions,   agent  liable  for:     Whitney   vs.    Express    Co.,    484; 
Hazard   vs.  Spears,    182;   Laverty  vs.   Snethen,  486;   Fassano  vs. 
Acosta,  490. 
of  agent,  ratification  of:    Hazard  vs.  Spears,  182;  Bank  of  Owensboro 
vs.  Western  Bank,  206. 
DISSOLUTION  OF  AGENCY, 

See  Teumination  of  Agency. 
DISSOLUTION  OF  PARTNERSHIP, 

damages  for  terminating  employment  by:    Origgs  vs.  Swift,  587. 
DOUBLE  AGENCY— See  Double  Commissions. 
DOUBLE  COMMISSIONS, 

broker  cannot  recover  when:    Rice  va.  Wood,  12;  Bell  vs.  McConnell, 
538.     Talcott  vs.  Chew,  689. 
"  DRUMMER," 

implied  authority  of,  to  warrant  goods:    Pickert  vs.  Marston,  41L 
to  collect:    McKindly  vs.  Dunham,  899. 
to  hire  horses:    Huntley  vs.  Mathias,  408. 
to  take  other  goods  in  part  pay:    Billings  vs.  Mason,  408. 
to  promise  commissions  on  orders:    Hibbard  vs.  Peek,  403. 
to  indorse  checks:    Jackson  vs.  Bank,  415. 
DRUNKENNESS, 

justifies  agenta  dismissal  when:    Bass  Furnace  Co.  vs.  Qlasscock,  291. 

EARNINGS, 

of  agent  belong  to  principal,  when:    Leach  vs.  Railroad  Co.,  480. 
ELECTION,    (See  Undisclosed  Principal.) 

to  hfild  a^t'nt  rather  than  princii)al:  Paterson  va.  Oandasequi,  545; 
Addison  vs.  Gandaxequi,  5t7;  T liompaon  vs.  Daven})ort,  647;  Irvine 
vs.  Watson,  550;  Koyton  vs.  Barnett,  658;  Beymer  va.  Bonaall,  654; 
Cleveland  vs.  Pearl,  556. 
whether  to  ratify  or  not:  Hyatt  va.  Clark,  177;  Heyn  va.  CHagen, 
186. 


Ikdbx.  731 

employment  of  agent, 

evidence  of:    Sibbald  vs.  Bethleham  Iron  Co.,  801. 
See  CoNTRAcrr  of  Agency. 
ENDORSE:    (See  Indorsement.) 

Belling  agent  has  no  implied  power  to  endorse  checks:    Jackson  vs. 
Bank,  415. 

ENTIRE  CONTRACT, 

must  be  ratified  or  none.    See  Ratification. 

EQUITY, 

will  not  enforce  unlawful  contracts:    Byrd  vs.  Hughes,  23. 

ESTOPPEL, 

agency  by:    Pole  vs.  Leask,  81;  Johnson  vs.  Hurley,  84;  Bickford  vs. 

Menier,  93. 
married  woman,  when  estopped:     Nash  vs.  Mitchell,  33;  Drury  vs. 
Foster,  120. 

EVIDENCE, 

of  agency,   agent's  declarations  are  not  admissible    as:    Hatch   vs. 

Squires,  106;  Howe  Machine  Co.  vs.  Clark,  107. 
agent's  testimony  is  competent:    Howe  Machine  Co.  vs.  Clark,  107. 
of  authority,  how  made:    Bichford  vs.  Menier,  93. 
what  testimony  of  agency  admitted:    Hatch  vs.  Squires,  106;  Howe 

Machine  Co.  vs.  Clark,  107. 
admissions  of  agent  when  admissible:    Vicksburg  R.  R.  vs.  O'Brien, 

572. 

EXCHANGE, 

by  general  agent,  binds  principal  when:    Hatch  vs.  Taylor,  345. 

by  wife,  binds  husband  when:    Cox  vs.  Hoffman,  39. 
•'EXCLUSIVE  AGENCY," 

may  still  be  revoked:    Chambers  vs.  Seay,  252. 
EXECUTION  OF  AUTHORITY. 

general  rules  governing:    Thomas  vs.  Joslin,  427. 
EXECUTION  OF  CONTRACTS, 

See  Deeds;  Neqotiablb  Instruments;  Contracts. 

FACTOR, 

who  is:  Lehman  vs.  Pritchett,  693;  McOraft  vs.  Rugee,  717. 
how  distinguished  from  broker:  Lehman  vs.  Pritchett,  C93. 
implied  powers  of:   Phillips  vs.  Moir,  671;  Pinkham  vs.  Crocker,  676; 
Warner  vs.  Martin,  678;  Dolan  vs.  Thompson,  684;  Insurance  Co.  vs. 
Kiger,  686. 
how  affected  by  usage:  Phillips  vs.  Moir,  671. 
selling  on  credit:  Pinkham  vs.  Crocker,  676. 
delegating  his  authority:    Warner  vs.  Martin,  678;  HarraUon  vs. 

Stein,  236. 
to  pledge  the  property:  Warner  vs.  Martin,  678. 
to  recover  advances:  Dolan  vs.  Thompson,  684. 
Obedience  to  instructions:  Phillips  vs.  Moir,  671;  Talcott  vs.  Chew,  689; 
Uhman  vs.  Pritchett,  693;  Hatcher  vs.  Comer,  698;  Davis  vs.  Kobe, 
700. 


732  Ihdbx. 

Factob — Continued. 

del  credere  commission  Imposes  what  liability:  Lewis  vs.  Brehme,  708. 

accounting  by:  Cooky  vs.  Belt  a,  702. 

diligence  required  of:  Pinkham  vs.  Crocker,  676. 

couunission  of:  Talcott  vs.  Chew,  6S}8. 

accidental  loss  does  not  render  him  liable:  Lehman  vs.  PritcheTl,  671. 

foreign  factor,  when  must  remit:  Cooley  vs.  Belts,  702. 

lien  of:  McGi-afi  vs.  Rugee,  717;  Bradford  vs.  Kimberly,  523. 

proceeds  of  goods  sold  by,  belong  to  principal:  Baker  v$.  New  York 
Bank,  596. 
principal  may  follow  and  recover.    Id. 
FALSE  niPRISONMENT, 

of  agent,  causing  injury  to  principal:  Railroad  V9.  Hunt,  608. 
FELLOW  SERVANTS, 

liability  of  one  to  the  other:   Osborne  vs.  Morgan,  518, 

FEME  COVERT,  (See  Makbied  Woman). 
FIDELITY, 

duty  of  agent  to  principal:  People  vs.  Toumship  Board,  459;  Davis  vs. 
Hamlin,  461;    Gardner  vs.  Ogden,  465;   Eice  vs.  Wood,  12;   Byrdvs. 
Hvghes,  23;  Constant  vs.  University,  560. 
agent  may  be  held  liable  in  damages  for  breach  of :  Oreenfleld  Bank  vs. 
Simons,  476. 

FIDUCIARY  RELATIONS, 

disability  of  parties  dealing  with  each  other;  Gardner  vs.  Ogden,  465; 
Qrecnfield  Bank  vs.  Simons,  476;  Rochester  vs.  Levering,  478;  Davis 
vs.  Hamlin,  461. 
of  attorney  and  client:    Stout  vs.  Smith,  628. 
FOREIGN  FACTOR, 

duty  of  as  to  accounting  and  remitting:    Cooley  vs.  Betts,  702. 
FORGERY, 

ratification  of:     Greenfield  Bank  vs.  Crafts,  110;  Henry  vs.  Heeb,  115. 

FORMER  RECOVERY, 

wlien  bar  to  further  recovery  of  wages:   Liddell  vs.  Chidester,  585. 
FRAUD. 

of  agent,  when  principal  bound  by:     Bank  of  Batavia  vs.  Railroad 
Co.,  576;  Fricdlander  vs.  Railway  Co.,  579. 

of  agent,  wBen  a  defense  against  principal:    Baldioin  vs.  Burrows,  198. 

between  agent  and  tliird  person  to  injure  principal:    See  Collusion. 
GENERAL  AGENT, 

who  is:    liutler  t».  Maples,  840;  Hatch  vs.   Taylor,  846;  Bryant  vs. 
Moore,  855. 

principal  Ynay  have  neveral:    Butler  vs.  Maples,  340. 

binds  his  principal  by  acts  within    apparent  authority:     Towle  vs. 
Leavitt,  iJSS;  Wheeler  vs.  McGuire,  362. 
GENHliAL  MANAGER,  (See  Nkqotiahlr  Insthcmknts.) 

how  curiiparea  with  laborer:     WakcJ'wld  vs.  Fargo,  4. 
GOOD  FAITH,    (Soe  Fidiclity;  Fiduciauy  Relations.) 

agent  Louud  to  act  in:    Page  vs.  Wells,  493. 


Ikdex.  783 

GOVERNMENT  CONTRACTS, 

agreements  to  procure:    Elkhart  County  Lodge  vs,  Crary,  18. 
GRATUITOUS  AGENT, 

must  obej-  instructions:    Passano  v$.  Acosta,  490. 

must  not  be  negligent:    Nixon  va.  Bogin,  493. 

HIRING  HORSES, 

implied  power  of  selling  agent  for:    Huntley  vs.  Mathiaa,  408. 
HOLDING  OUT,    (See  Implied  Authority.) 

principal  bound  by  authority  he  holds  agent  out  as  possessing:  Bick- 
ford  vs.  Menier,  93;  Johnson  vs.  Hurley,  84;  Breckenridge  vs.  Lewis, 
103. 

HUSBAND, 

may  appoint  wife  his  agent:    Cox  vs.  Hoffman,  89. 

may  be  agent  of  his  wife:      Weislrrod  vs.  By.  Co.,  81;  McLaren  va. 

Hall,  77. 
liability  for  wife's  acts:    Cox  vs.  Hoffman,  79;  Benjamin  vs.  Dockham, 
71;  Benjamin  vs.  Benjamin.  72. 
HUSBAND  AND  WIFE, 

See  Husband;  Wife;  Makried  Woman. 
EMPLIED  AUTHORITY,    (See  Apparent  Authority.) 

from  acts  of  principal:    Craves  vs.  Horton,  82;  Johnson  vs  Hurley,  84; 
Crane  vs.  Gruenewald,  87;  Bickford  vs.  Menier,  93. 
of  husband  as  wife's  agent:    McLaren  vs.  Hall,  77. 
of  wife  for  husband:     Benjamin  vs.  Dockham,  71;  Benjamin  vs. 

Benjamin,  72. 
of  child  for  parent:    Johnson  vs.  Stone,  78;  Bennett  vs.  Oillette,  79. 

IMPLIED  POWER, 

authority  includes  power  to  do  aU  things  necessary  to  make  chief 
power  effectual:     Wheeler  va.  McQuire,  363;  Huntley  vs.  Mathias, 
408. 
IMPUTING  KNOWLEDGE, 

See  Notice  to  Agent. 
INCIDENTAL  POWERS,    (See  Implied  Power.) 

pass   with   main   power:     Wheeler  vs.  McQuire,  363;  Huntley  tw. 
Mathias,  408. 
INDEMNITY, 

agent  entitled  to  from  principal:    D'Arcy  vs.  Lyle,  542. 

INDORSEMENT,    (See  Endorse.) 

by  agent  when  remitting  to  principal  imposes  what  liability:    Letoisvs, 
Brehme,  706. 
INFANCY,    (See  Infant.) 

incapacitates  as  principal:    TrueUood  vs.  Trud>lood,  29. 
but  not  as  agent:    Lyon  vs.  Kent,  37. 

defense  of,  cannot  be  set  up  by  third  person:    Patterson  vs.  Lippincottf 
507. 

INFANT, 

as  principal:  Trueblood  vs.  Trueblood,  39. 


734  LsDBX. 

Ikfant — Continned. 

as  agent:  Lyon  vs.  Kent,  87. 

ratification  by:  Truthlood  vs.  Trueblood,  29;  Patterson  xm.  Lippincott, 
507. 

liability  of  his  principal:  Patterson  vs.  Lippincutt,  507. 

liability  of  infant:  Id, 

ratification  by:  Jd. 

ratification  by:  lYueblood  va.  Trueblood,  29;  Patterson  vs.  Lippincott, 
507. 
INJUNCTION, 

against  violation  of  contract  to  serve:  Cart  vs.  Lassard,  S18. 

INSANITY, 

terminates  agency:  Matthiessen  vs.  McMahon,  835. 

INSTALLMENTS, 

when  wages  may  be  recovered  in:  Liddell  va.  CJiidester,  535. 

INSTRUCTIONS  (See  Secret  Limitations), 

effect  of  in  limiting  apparent  authority:  Butler  vs.  Maples,  340;  Hatch 

vs.  Taylor,  345;  Bryant  vs.  Moore,  355. 
duty  of  agent  to  obey:    Whitney  vs.  E.vpress  Co.,  484;   Hazard  va. 

Spears,  182;  Lavcrty  vs.  Sncthen,  486;  Passano  vs.  Acosta,  490. 
agent  liable  for  damages  resulting  from  disobedience:  Id. 
to  agent,  breach  of  how  ratified:  Bank  of  Owenshoro  va.  Western  Batik, 

206;  Hazard  vs.  Spears,  182. 
when  factor  boimd  to  follow:  Phillips  vs.  Moir,  671;   Talcott  va.  Chew, 
689;  Lehman  vs.  Pritchett,  693;  Hatcher  vs.  Comer,  69a 
ENTEGRITY,  (See  Fldeuty;  Fiduciary  Relations.) 

agent  bound  for:  Page  vs.  Wells,  493. 
INTERPRETATION  (See  Construction). 
"  IRREVOCABLE  AGENCY," 

may  be  revoked;  Blackstone  va.  Buttermore,  255. 

IRREVOCABILITY, 

of  ratification:  Hyatt  va.  Clark,  177;  Jones  vs.  Atldnson,  193. 
JOINT  AGENTS, 

when  all  must  join  in  executing:  Hairley  vs.  Keeler,  60;  First  Nat. 
Bk.  vs.  Mt.  Tabor,  53;  McNeil  va.  Chamber  of  Commerce,  63;  Deakin 
va.   Underwood,  68. 

JOINT  POWER, 

does  not  authorize  separate  execution:    Gilbert  va.  How,  880. 

JOINT  PRINCIPALS. 

power  from  will  not  authorize  binding  one  only:    Gilbert  vs.  How,  880. 

liability  of:     Ash  vs.  Guie,  45;  Davi^uJi  vs.  llolden,  47. 
JOINT  TORT  FEASORS, 

release  of  one,  effect  of:    Mayor  of  Salford  va.  Lever,  601. 

JUDGMENT, 

against  agent,  how  fax  conclusive    on   principal:    Railroad   Co.   vs. 

Hunt,  608. 
against  agent,  when  bar  to  liability  of  principal:   Beymer  va.   Bonaall, 
554. 


Index.  73S 

Judgment — Continued. 

setting  aside  for  want  of  appearance:    Reynolds  va.  Fleming,  615. 

JURY, 

question  of  agency,  when  for:  Lyon  vs.  Kent,  37;  Savings  Society  vs. 
Savings  Bank,  371. 

KNOWLEDGE. 

of  material  facts,  essential  to  ratification:    See  Ratitication. 
of  legal  effect  not  necessary:    See  Ratification. 
of  agent,  when  imputable  to  principal:    Hyatt  vs.  dark,  177. 
See  Notice  to  Agent, 

LAJBORER, 

how  compares  with  agent:     Wakefield  vs.  Fargo,  4. 
LACK  OF  AUTHORITY,    (See  Warranty  of  Authority.) 

agent  liable  to  third  person  for:  Kroeger  vs.  Pitcaii-n,  501;  Simmons 
vs.  More,  505;  Patterson  vs.  lAppincott,  507;  Peters  va.  Famsworth, 
387. 

LAND, 

authority  to  sell,  how  conferred:    Lyon  vs.  Pollock,  378. 

joint  power  wiU  not  authorize  sale  of  separate  interests:    Oilhert  vs. 

How,  380. 
covenants  of  warranty  may  be  inserted:    LeRoy  vs.  Beard,  382;  Peters 

vs.  Famsworth,  387. 
agent  to  sell  can  not  trade  for  goods:    Lumpkin  vs.  Wilson,  890. 

LAW, 

Authority  created  by:    See  Compulsory  Agency;  Husband;  Wife; 

Parent;  Child. 

LEASE, 

unauthorized,  ratified  by  accepting  rent:    Hyatt  vs.  Clark,  177. 

LEGISLATION, 

contracts  to  procure:    Mills  vs.  Mills,  17. 
LLA.BILITY  OF  AGENT  TO  PRINCIPAL, 

for  fidelity:    See  Fidelity;  Damages. 

for  negligence:    See  Negligence;  Damages. 

to  account:    See  Account;  Trustee. 

to  give  notice:    See  Notice. 

to  obey  instructions:    See  Instructions;  Conversion;  Teovbb, 
LIABILITY  OF  AGENT  TO  THIRD  PERSON, 

for  acting  without  authority:    See  Warranty  of  Authority. 

for  acting  without  a  principal:    Bee  Warranty  of  Authority. 

to  pay  over  money  received:    Herrick  vs.  Gallagher,  512. 

for  torts:  Delaney  vs.  Rochereau,  514;  Osborne  vs.  Morgan,  618; 
Stephens  vs.  Elwall,  226. 

for  negligence:    See  Negligence. 

for  conversion:    See  Conversion. 
LIABILITY  OF  PRINCIPAL  TO  AGENT, 

for  ccmpensation:  See  Compensation  of  Agent. 

for  Uen:  Bee  Lien. 


736  IlsTDEX. 

TjApTT.TTY  OP  Principal  to  Aqbtnt — Continued. 

for  damages  for  breach  of  contract:   See  Damaqks;  Weonqful  Dis- 

CHiLROE. 

for  reimbursement:  See  REiiTBUnSEMENT. 
for  indemnity:  See  Indemnity. 
LIABILITY  OF  PRINCIPAL  TO  THIRD  PERSONS, 
undisclosed  principal:  See  Undisclosed  Peincipai* 
for  sale  to  agent:  See  Sale  TO  Agent. 
lor  notice  to  agent:  See  Notice  to  Agent. 
for  results  of  ratification:  See  RaTXTICATION, 
for  agent's  fraud:  See  Fraud. 

for  agent's  admissions:  See  ADMISSIONS;  EVIDENCE;  DecLARATIONB. 
for  agent's  contracts:    See  Collection;   Sale;   Deed;   Neootiablb 

Instruments,  ETa 
for  implied  powers  of:   See  Implied  Powers;  Impijed  Authority; 
Incidental  Powers. 
LIABILITY  OF  THIRD  PERSON  TO  AGENT, 

agent's  right  to  sue  on  contracts  made  by  him:   See  Action. 
UABILITY  OF  THIRD  PERSON  TO  PRINCIPAL, 

to  action  by  principal  on  contracts  made  by  agent:  See  Action. 

to  account  for  property  received  from  agent:   See  Account;  Trust 

Funds. 
for  collusive  dealing  vrith  agent:  See  COLLUSION;  Daiiages. 
for  injuries  to  agent  causing  damage  to  principal:   See  Malicious 
Arrest. 
LIEN, 

agent  has  for  his  compensation:  Bradford  va.  Kimberly,  523. 
of  attorneys:  See  Attorneys, 
of  auctioneers:  See  Auctioneers. 
of  factors:  See  Factors. 
LOAN, 

neglect  of  agent  in  making,  how  ratified:  Bank  of  Owensboro  va.  Wea- 

tern  Bank,  206. 
broker  to  procure,  when  entitled  to  hia  commissions:   Vinton  vs.  Bald- 
win, 604. 
LODGE, 

liability  of,  for  contracts  of  member:  Ash  v$.  Quit,  45. 
liability  of  agent  of:  Lexcia  va.  Tilton,  510. 

MAJORITY, 

when  majority  of  public  agents  may  act:   First  National  Bank  va.  Mt. 
Tabor,  53;  McNeil  va.  Clumiber  of  Commerce,  63. 

MALFEASANCE, 

liability  of  agent  for:  Delaney  va.  Eochereau,  514;  Osborne  va.  Morgan, 
518. 
MALICIOUS  ARREST, 

of  agent  to  injure  principal:  Railroad  va.  Eunt,  608. 

MANAGER  OF  BUSINESS, 

no  if.) plied  authority  to  make  negotiable  paper:   Iron  Mine  va.  Bank, 

42a 


Ikdbx.  737 

Manager  of  Business— Continued. 

or  to  sell  the  business:  Vesceliua  vs.  Martin,  422. 
authority  of,  how  construed:  Brockway  va.  Mullin,  419. 
MANAGER  OF  HOTEL, 

has  no  implied  authority  to  bind  principal  for  horses  furnished  to 
guests:  Brockway  vs.  Mullin,  419. 
MANAGING  AGENT, 

can  not  take  advantage  of  position  to  make  gain  for  himself:  Davis  vs. 
Hamlin,  461. 

MAERIED  WOMAN, 

when  may  appoint  agents:    WeisTxrod  vs.  Railway  Co.,  81;  Nash  vs. 

Mitchell,  83. 
may  act  as  agent:    Cox  vs.  Hoffman,  89. 

may  appoint  her  husband  as  her  agent:    McLaren  vs.  Hall,  77. 
ratification  of  his  acts:    McLaren  vs.  Hall,  77. 
estoppel  of:    Nash  va.  Mitchell,  31;  Drury  vs.  Foster,  120. 
MlRSHALLING, 

doctrine  of,  how  applicable  to  auctioneer:    Webb  vs.  Smith,  661. 
M  iSTER,    (See  Mastee  and  Servant.) 

liability  for  servant's  acts:    Singer  Mfg.  Co.  vs.  Rdhn,  8;  Wilson  va. 

Owens,  9:  FHedlander  vs.  Ry.  Co.,  579;  Mayor  vs.  Lever,  601. 
not  liable  for  negligence  of  feUow  servant:    Osborne  vs.  Morgan,  618. 
liability  of  to  servant.    Id. 

liability  to  servant  for  wrongful  discharge:    Howard  va.  Daly,  526; 
Ldddell  vs.  Chidester,  535. 
MASTER  AND  SERVANT, 

when  relation  of  exists:    Singer  Mfg.   Co.  va.  Rahn,  8;  Wilson  *«. 
Owens,  9. 
MECHANICAL  ACTS, 

delegation  of:    Qrady  va.  Insurance  Co.,  238. 
MIDDLEMAN, 

broker  as:     Vinton  vs.  Baldwin,  664;  Bell  va.  McConneU,  638. 
when  may  recover  from  both  parties:    Rice  vs.  Wood,  12;  Vinton  vs. 
Baldunn,  664;  Bell  vs.  McConneU,  532. 
MINISTERIAL  ACTS, 

delegation  of:    Qrady  vs.  Insurance  Co.,  238. 
MISFEASANCE, 

liability  of  agent  for:  Ddaney  va.  Rochereau,  614;  Osborne  vs.  Morgan, 
618. 
MONEY, 

receipt  of  from  agent,  when  not  a  ratification  of  means  of  procuring  it: 
Thacher  vs.  Pray,  204. 
MONKS, 

may  be  agents:  Lyon  vs.  Kent,  87, 
MORTGAGE,  (See  Dekd^ 

authority  to  receive  payment  on,  when  implied:  Crane  va.  OiueneuuM, 
87. 
47 


738  IlTDBX. 

MORTOAGE — Continued. 

authority  to  fill  blanks  in:  Drury  va.  Foster,  120. 
MUNICIPAL  CORPORATIONS, 

ratification  by:  ScJiool  District  vs.  Insurance  Co.^  184. 

delegation  by:    Birdsall  vs.  Clark,  231. 

MUTUALITY, 

necessity  of,  in  ratification:  Dodge  vs.  Eojpkins,  215;  McClintock  vs.  OQ 
Co.,  219;  Bolton  vs.  Lambert,  222. 

NEGLIGENCE, 

master's  liability  for  servant's:  Singer  Mfg.  Co.  va.  Rdhn,  8;  Wilson  vs. 

Owens,  9. 
of  principal  in  discovering  that  agent  is  exceeding  authority,  when  a 

ground  of  liability:  Wheeler  vs.  McOuire,  362. 
liability  of  agent  for,  to  third  persons:  Delaney  va.  Rochereau,  514; 

Osborne  vs.  Morgan,  518. 
agent  must  not  be  guilty  of:  Page  va.  Wells,  493. 
not  bound  to  anticipate  unusual  danger:  Johnson  vs.  Martin,  498. 
agent  not  excused  for,  because  agency  had  become  troublesome:  Detail 

vs.  Burbridge,  499. 
of  agent,  principal's  ratification  of:  Hazard  vs.  Spears,  183;  Bank  oj 

Owensboro  vs.  Western  Bank,  206. 
NEGOTIABLE  INSTRUMENTS, 

power  to  execute  not  implied:    Jackson  vs.  Bank,  415. 

powers  to  execute  strictly  construed:    King  vs.  Sparks,  418. 

power  to  manage  business  does  not  warrant  execution  of:    Iron  Mine 

vs.  Bank,  423. 
how  to  be  executed  so  as  to  bind  principal:    Hobson  vs.  Hassett,  442; 

Eeeve  vs.  Bank,  446;  Liebscher  vs.  Kraus,  448. 
parol  evidence  to  explain:    Liebscher  vs.  Kraus,  448. 
power  to  collect,  does  not  warrant  endorsing  checks  received  in  pay- 
ment:   Jackson  va.  Bank,  415. 

NONFEASANCE, 

liability  of  agent  for:    Delaney  vs.  Rochereau,  514;  Osborne  va.  Morgan, 
518. 
NOTES,  (See  Negotiable  Instruments.) 

ratification  of  unauthorized  signing  of:    Greenfield  Bank  vs.  Crafts, 
110;  Henry  vs.  Heeb,  115. 

NOTICE, 

agent  must  give  principal  notice  of  material  facte  coming  to  agent's 
knowledge:    Dewall  vs.  Burbridge,  499;  Pi7ikham  vs.  Crocker,  676. 

NOTICE  OF  TERMINATION, 

of  agency,  must  be  given:    Clajlin  vs.  Lenheim,  294;   Insurance  Co. 

vs.  McCain,  299;   Wheeler  vs.  McOuire,  862. 
oonfitructivo  notice  of:    Clajlin  vs.  Lenheim,  294. 
when  a  quf^stion  for  jury  or  court:    Clajlin  va.  Lenheim,  294. 

NOTICE  TO  AGENT, 

when  notice  to  principal:    Hyatt  vs.  Clark,  177. 


Index.  739 

Notice  to  Agent— Continued. 

to  be  notice  to  principal  must  be  acquired  when:  WTieeler  V3.  McCfuire, 

863;  Constant  vs.  University,  560. 
not  notice  to  principal  of   agent  acting  adversely:    Innerarity  vs. 

National  Bank,  569. 
knowledge  acquired  by  agent  in  one  transaction,  when  imputed  to 
principal  in  another:  Constant  vs.  University,  560. 
OFFICERS  OF  TOWNS, 

when  liable  on  contracts  made  by  them:  Knight  vs.  Clark,  434;  Brawn 
vs.  Bradlee,  454. 
OTHER  EMPLOYMENT, 

agent  wrongfully  discharged  must  seek:  Howard  vs.  Daly,  526. 
burden  of  proving  that  could  be  found:  Howard  vs.  Daly,  526. 
OUTLAWS, 

may  be  agents:  Lyon  vs.  Kent,  87. 
PARENT, 

implied  authority  of  child  as  his  agent:  Johnson  vs.  Stone,  78;  Bennett 
vs.  Oillette,  79. 
PAROL  EVIDENCE, 

to  explain  ambiguous  notes:  Liebscher  vs.  Kraus,  448. 

admissible  to  charge  principal  on  contract  made  in  agent's  name:  Bying' 

ton  vs.  Simpson,  558. 
to  admit  principal  to  benefit  of  contract:  Huntington  vs.  Knox,  587. 
admissible  to  entitle  principal  to  benefit  of  contract  made  by  his  agent: 

Huntington  vs.  Knox,  587. 
admissibility  of,  to  discharge  from  liability  on  written  contract:  Hig- 
gins  vs.  Senior,  456. 

PARTNER, 

when  entitled  to  compensation  as  agent  for  other  partners:    Bradford 
vs.  Kimberly,  528. 

may  appoint  agents:    Lucas  vs.  Bank  of  Darien,  37. 
PARTNERSHIP, 

as  principal:    Lucas  vs.  Bank  of  Darien,  27. 

as  agent:    Deahin  vs.  Underwood,  68, 

unincorporated  societies  are  not:    Ash  vs.  Chile,  45. 

as  agent,  effect  of  dissolution  of:    Durkee  vs.  Ounn,  813. 

damages  for  terminating  agency  by  dissolution  of:    Qriggs  vs.  Swift, 
537. 

ratification  by:    Forbes  vs.  Hagman,  123;  Mclntyre  vs.  Park,  170. 
PAYMENT, 

to  agent,  when  presumptively  authorized:    Crane  vs.  Oruenewald,  87. 

to  agent  after  death  of  principal  not  good:    Weber  vs.  Bridgman^  881. 
PERSONAL  LIABILITY, 

of  agent:    See  Warranty  op  Authoeity,  # 

PERSONAL  TRUSTS, 

cannot  be  delegated:    See  Delegation. 
PLEDGE, 

authority  to  sell,  does  not  warrant:    Warner  vs.  Martin,  678. 


740  Index. 

Pledoe — Continued. 

authority  of  factor  to:    Warner  vs.  Martin,  678;   Insurance  Co.  vs. 

Kiger,  686. 

POSSESSION  OF  GOODS, 

does  not  raise  inference  of  power  to  sell:    Levi  vs.  Booth,  89;  Towle  vs. 
Leavitt,  358.  ■ 

POSTOFFICE, 

contract  to  secure  location  of:    Elkhart  County  Lodge  vs.  Crary,  18. 
POWER  COUPLED  WITH  AN  INTEREST, 

defined;    Chavibers  vs.  Seay,  252;  Hunt  vs.  Rousmanier,  823, 
PRINCIPAL:    (See  Principal  and  Agent.) 
PRINCIPAL  AND  AGENT  (See  Agent;  Master  and  Servants), 

when  relation  of  exists:  Regina  vs.  Walker,  1;  Wakefield  vs.  Fargo,  4; 

Singer  Mfg.  Co.  vs.  Rahn,  8;  Wilson  vs.  Oivens,  9. 
for  what  purposes  relation  maybe  created:  Rice  vs.  Wood,  12;  Atlee  vs. 
Fink,  14;   Mills  vs.  Mills,  17;   Elkhart  County  Lodge  vs.  Crary,  18; 
Byrd  vs.  Hughes,  23. 
who  may  be  principal:   St.  Andrews  Bay  Land  Co.  vs.  Mitchell,  26; 
Lucas  vs.  Bank  of  Darien,  27;    Trucblood  vs.  Truehlood,  29;    Wies- 
brod  vs.  Ry.  Co.,  81;  Nash  vs.  Mitchell,  83. 
who  may  be  agent:   Lyon  vs.  Kent,  87;   Cox  vs.  Hoffman,  89;  Deakin 

vs.  Underwood,  68;  Killingsworth  vs.  Portland  Trust  Co.,  40. 
joint  principals:  Ash  vs.  Ouie,  45;  Davison  vs.  Holden,  47. 
joint  agents:  Hawley  vs.  Keeler,  50;  First  National  Bank  vs.  Mt.  Tabor, 
53;  McNeil  vs.  Boston  Chamber  of  Commerce,  63;  Deakin  vs.  Under- 
wood, 68. 
relation  created  by  law:   Benjamin  vs.  Dockham,  71;   Benjamin  vs. 
Benjamin,  72;  McLaren  vs.  Hall,  77;  Johnson  vs.  Stone,  78;  Bennett 
vs.  Gillette,  79. 
relation  created  by  act  of  parties:  Pole  vs.  Leask,  81;   Graves  vs.  Hor- 
ton,  82;  Johnson  vs.  Hurley,  84;  Crane  vs.  Qruenewald,  87;  Bickford 
vs.  Menier,  93. 
sealed  instrument,  when  necessary:  Long  vs.  Hartwell,  93, 
written  authority,  when  necessary:  Long  vs.  Hartwell,  92. 
apparent  authority  binds  principal  when:  Johnson  vs.  Hurley,  84;  Bich- 

ford  vs.  Menier,  93;  Breckenridge  vs.  Lewis,  108. 
evidence  of  relation:  Hatch  vs.  Squires,  106;  Howe  Machine  Co.  vs. 

Clark,  107. 
ratification  by  principal  of  unautliorized  acts:  See  Ratification, 
delegation  by  agent  of  liis  authority:  See  Delegation. 
termination  of  relation:  See  Termination  ok  Aoenoy, 
PRIVATE  INSTRUCTIONS:    (See  Instructions.) 
PROFESSIONAL  SERVICES, 

oontractB  for,  when  valid:    Mills  vs.  Mills,  17;  Elkhart  County  Lodge 
vs.  Crary,  18;  Stanton  vs.  Embrcy,  631. 
PROFITS, 

mado  by  agent  belong  to  principal,  when:    Gardner  vs.  Ogden,  465; 
Leach  vs.  Railroad  Co.,  480. 


Index.  741 

PROMOTERS, 

ratification  by  corporation  of  their  acts:    Mc Arthur  V8.  Times  Printing 
Co.,  128;  BelVs  Gap  B.  B.  vs.  Christy,  131. 
PUBLIC  AGENCY, 

revocation  of:    Missouri  vs.  Walker,  277. 
PI7BLIC  AGENTS, 

when  majority  of  may  act:    First  Nat.  Bank  vs.  Mt.  Tabor,  63;  McNeil 
vs.  Chamber  of  Commerce,  68. 

PUBLIC  OFFICERS, 

contracts  for  influencing:    See  Public  Policy. 

liability  on  contracts  made  by  them:    Knight  vs.  Clark,  434;  Broum  vs. 

Bradlee,  454. 
can  not  be  interested  in  contracts  made  by  them:    People  vs.  Board, 
459. 
PUBLIC  POLICY, 

forbids  agencies  for  what  purposes:  Bice  vs.  Wood,  12;  Atlee  vs.  Fink, 

14;  Mills  vs.  Mills,  17;  Elkhart  County  Lodge  vs.  Crary,  18. 
whether  sale  of  interest  in  agency  is  opposed  to:  Peterson  vs.  Christen- 
sen,  234. 
PUBLIC  TRUSTS, 

can  not  be  delegated:  Birdsall  vs.  Clark,  231. 
PURCHASE, 

when  agent  has  implied  power  to:  Wheeler  vs.  McGuire,  362. 

can  not  buy  on  credit  when  furnished  with  fimds:  Komorowski  vs. 

Krumdick,  413. 
when  principal  bound  by  agent's:  Hubbard  vs.  Tenbrook,  867;  Watteau 

vs.  Fenwick,  869. 
by  general  agent  binds  principal  though  contrary  to  instructions:  But- 
ler vs.  Maples,  840;  Davison  vs.  Holden,  47. 
by  agent,  liability  of  principal  for:  See  Sale  to  Agent. 
QUANTUM  MERUIT, 

no  recovery  on,  when  contract  exists:  Wallace  vs.  Floyd,  525. 
recovery  on,  when  contract  broken  by  principal:    Howard  vs.  Daly, 
526;  Liddell  vs.  Chidester,  535. 
RAILROAD  COMPANY:    (See  Cabbiee.) 
RATIFICATION, 

what  is  meant  by:    McCracken  vs.  San  Francisco,  109. 

what  acts  may  be  ratified:    Qreenfield  Bank  v.f.  Crafts,  110;  Henry  vs. 

Heeb,  115. 
who  may  ratify— corporations:  Mc  Arthur  vs.  Times  Printing  Co.,  128; 
BelVs  Gap  B.  R.  vs.  Christy,  131. 
mxmicipal  corporations:    School  District  vs.  JEtna  Ins.  Co.,  194. 
infants:    Trueblood  vs.  Trueblood,  29;  Patterson  vs.  Lippincott, 

507. 
married  woman;    Drury  vs.  Foster,  120;  McLaren  vs.  HaU,  77. 
partners:    Forbes  vs.  Hageman,  122. 
agents:    Ironwood  Stove  Co.  vs.  Harrison,  124. 
conditions  essential  to;  present  ability:    McCracken  vs.  San  Francisco, 
109. 


742  Index. 

Ratification— Continued. 

present  existence  of  principal:    Foster  V8.  Bates,  127;  MoArthur 

vs.  Times  l^nting  Co. ,  128. 
knowledge  of  material  facts:    BeWs  Gap  R.  R.  Co.  vs.  Christy, 
131;  Hamlin  vs.  Sears,  13G;  Wheeler  vs.  Sleigh  Co.,  138;  Roberts 
vs.  Rumley,  143;  Combs  vs.  Scott,  146;  Baldimn  vs.  Burrows, 
196;   Bank  of  Owensboro  vs.  Western  Bank,  206;    Wheeler  vs. 
McGuire,  862;  Craighead  vs.  Peterson,  873. 
when  knowledge  presumed:    Scott  vs.  Railroad  Co.,  148. 
knowledge  of  legal  effect  not  necessary:    Hyatt  vs.  Clark,  177. 
must  ratify  all  or  none:    Eberts  vs.  Selover,  150;  Wheeler  &   Wil- 
son Co.  vs.  Aughey,  152;  Shoninger  vs.  Peabody,  172. 
how  in  case  of  special  agency:    Smith  vs.  Tracy,  154. 
party  must  have  acted  as  agent:    Hamlin  vs.  Sears,  136;  Jronwood 

Stove  Co.  vs.  Harrison,  124. 
intervening  rights  not  affected:    Cook  vs.  TuUis,  160. 
may  ratify  even  after  disapproval:     Woodward  vs.  Harlow,  165. 
what  amounts  to  ratification, — sealed  instrument   when    necessary: 
Hawkins  vs.  McOroarty,  167;  Mclntyre  vs.  Park,  170. 
writing  when  necessary:    Hawkins  vs.  McGroaity,  167. 
bringing  suit  upon  contract:    Shoninger  vs.  Peabody,  172. 
accepting  benefits:    Hyatt  vs.  Clark,  177;  Wheeler  vs.  Sleigh  Co., 
138;  Smith  vs.   Tracy,  154;  Eberts  vs.  Selover,  150;  School  Dis- 
trict vs.  Insurance  Co.,  194;  Baldtoin  vs.  Burrows,  196;  Thacher 
vs.  Pray,  204. 
failure  to  dissent  within  reasonable  time:    Hazard  vs.  Spears,  183; 

Heyn  vs.  O'Hagen,  186;  Jones  vs.  Atkinson,  192. 
authority  subsequently  conferred:    Rice  vs.  McLarren,  190. 
Irrevocable  when  once  made:    Jones  vs.  Atkinson,    192;   Hyatt  vs. 

Clark,  177. 
results  of  ratification — as  between  principal  and  agent:    Hazard  vs. 
Spears,  182;  Bank  of  Owensboro  vs.  Western  Bank,  206. 
entitles  agent  to  compensation:     Wilson  vs.  Dame,  526. 
as  between  principal  and  other  party:    Dodge  vs.  Hopkins,  216; 

McClintock  vs.  Oil  Co.,  219;  Bolton  vs.  Lambert,  222. 
as  between  agent  and  other  party:    Stephens  vs.  Elwall,  226. 
retroactive  effect  of:    Dodge  vs.  Hopkins,  215;  McClintock  vs.  Oil  Co., 

219;  Bolton  vs.  Lambert,  222. 
effect  as  adoption  of  means  of  procuring  a  contract:    Baldwin  vs.  Bur- 
rows, 196;  Thacher  vs.  Pray,  204. 
question  of  ratification  for  the  court  when  facts  undisputed,  otherwise 
for  jury:    Savi}tgs  Fund  Society  vs.  Savings  Bank,  371. 
intention  to  ratify  or  not,  how  shown:     Craighead  vs.  Peterson, 
873. 
READINESS  TO  PERFORM, 

whether  servant  wrongfully  discharged  must  be  in:    Howard  vs.  Daly, 
026. 
REAL  ESTATE  AGENT, 

when  entitled  to  commissions:    Plant  vs.  Thompson,  666;    Vinton  vs. 
Baldwin,  G64. 


Index.  743 

REIMBURSEMENT, 

agent  entitled  to:  D'Arcy  vs.  Lyle,  542;  Jacobs  vs.  Warfield,  287;  Alworth 

vs.  Seymour,  314. 
of  factor:    Hatcher  vs.  Comer,  698;  Lehman  vs.  Pritchett,  693;   Davis 
vs.  Kobe,  700. 
RENUNCIATION,  (See  Termination  of  Agency.) 

REPRESENTATIONS, 

of  agent  as  to  his  authority,  when  binding  on  principal;   Hatch  vs. 

Squires,  106;  Howe  Machine  Co.  vs.  Clark,  107;  Bank  of  Batavia  vs. 

Railroad  Co.,  576;  Friedlander  vs.  Railway  Co.,  579. 
when  principal  bound  by:  Bickford  vs.  Alenier,  93. 
not  admissible  to  prove  his  authority:    Hatch  vs.  Squires,  106;   Howe 

Machine  Co.  vs.  Clark,  107;  Graves  vs.  Horton,  82. 

REPUDIATION, 

of  unauthorized  contract:  See  Ratification. 
of  hiring:  See  Wrongful  Discharge. 

REPUTATION, 

agency  can  not  be  proved  by  general  reputation:  Cfravea  vs.  Eorton,  82. 
See  Evidence. 
RECISSION, 

of  unauthorized  contract:  See  Ratification. 

RES  GEST^, 

admissions  of  agent  as  part  of:  Vicksburg  B.  B.  vs.  O'Brien,  572. 

RETROACTIVE  EFFECT, 

of  ratification:  See  Ratification. 
REVOCATION,  (See  Termination  of  Agency.) 

RIVAL  BUSINESS, 

engaging  in,  warrants  termination  of  agency:  Diertnger  vs.  Meyer,  289. 

SALE,  (See  Sell.) 

when  broker  entitled  to  commissions  for  making:  Stbbald  vs.  Bethle- 
hem Iron  Co.,  SOI;  Plant  vs.  Thompson,  666;   Vinton  vs.  Baldwin, 

664. 
damages  to  agent  for  not  being  aUowed  to  make:  Durkee  vs.  Gunn,  312. 

SALE  TO  AGENT, 

when  principal  Uable  for:  Watteau  vs.  Fenwick,  369;  Hubbard  vs.  Ten- 
brook,  367;  Paterson  vs.  Gandasequi,  545;  Thompson  vs.  Davenport, 
647;  Irvine  vs.  Watson,  550;  Kayton  vs.  Bamett,  553;  Cleveland  vs. 

Pearl,  556. 
qw  AT 

authority  under,  when  necessary:    Long  vs.  Hartwell,  92;    Gardner 

vs.  Gardner,  100. 
unnecessary,  may  be  disregarded:    Long  vs.  Hartwell,  93;  Thomas  vs. 

Joslin,  427.  . 

ratification-by  sealed  instrument,  when  necessary:  Hawkins  vs. 
McGroarty,  167;  Mclntyre  vs.  Park,  170. 

SEALED  INSTRUMENTS,  ^     t    .o. 

how  to  be  executed:    McClure  vs.  HerHng,  429;  Knight  vs.  Clark,  434. 
when  principal  may  sue  upon:    BHggs  vs.  Partridge,  486. 


744  Index. 

SECRET  LDHTATIONS, 

on  authority  of  general  ag^nt:    Butler   va.  Maples.   840;  Hatch  va. 
Taylor,  345;  Bryant  va.  Moore,  855. 
SELL,  (See  Sale.) 

authority  to,  when  implied:    Towle  va,  Leavitt,  358;  Levi  va.  Booth, 

391;  Smith  vs.  Clews,  ;i96. 
authority  to,  does  not  warrant  collecting:    McKindly  vs.  Dunham,  899. 
authority  to  sell  does  not  justify  Bale  on  credit:    School  District  va. 

Insurance  Co.,  194. 
authority  to  sell  property  of  two  does  not  authorize  sale  of  one:    Dodge 

va.  Jlopldna,  215. 
agent  to  sell  can  not  delegate,  Atlee  vs.  Fink,  14. 

or  promise  commissions  on  sub-sales:    Id.;  Hibhard  vs.  Peek,  403. 
or  take  other  goods  in  payment:  Billings  vs.  Mason,  406. 
implied  authority  of,  to  hire  horses:  Huntley  vs.  Mathias,  408. 
to  give  warranty  of  goods:  Pickert  vs.  Marston,  411. 
agent  to,  cannot  buy  for  himself:    Oreenfield  Bank  vs.  Simons,  476; 
Gardner  vs.  Ogden,  465, 
unless  with  principal's  full  knowledge  and  consent:  Rochester  va. 
Lecering,  478. 
agent  to  sell,  can  not  sell  at  auction:  Toicle  vs.  Leavitt,  358. 
autliority  to,  does  not  justify  pledge:  Warner  vs.  Martin,  678. 
agent  to,  liable  for  broach  of  instructions:  Laverty  vs.  Snethen,  486. 
power  to,  when  coupled  with  an  interest:  Hunt  va.  Eousmanier,  823; 
Enapp  va.  Alvord,  823. 
SERVANT, 

how  distinguished  from  agent:  Regina  va.  Walker,  1;  Wakefield  vs. 
Fargo,  4;  Singer  Mfg.  Co.  va.  Rahn,  8;  Wilson  va.  Owens,  9. 
SEVERAL  AGENTS, 

principal  may  employ:  Ahem  vs.  Baker,  288. 
SIGNATURE, 

ratification  of  unauthorized:  See  Foeqery;  Ratitication, 
SIGNING  (See  Deeds;  Contracts;  Neootiable  Instruments). 
SILENCE. 

may  amount  to  ratification:  Jones  va.  Atkinson,  192;  Hazard  vs.  Speara, 
182;  Heyn  v.  O'Hagen,  188. 
SLAVE, 

may  be  agent:  Lyon  va.  Kent,  87. 
SOCIETY, 

liability  of  agint  of:    Leu-is  vs.  Tilton,  510. 
liabiUty  of,  for  contracts  of  members:    Ash  va.  Ouie,  45. 
SON, 

implied  authority  of,  as  father's  agent:    Johnson  va.  Stone,  78;  Ba^ 
nett  va.  Gillette,  79. 
SPECIAL  AGENT, 

who  is:     liuiler  va.  Maples,  840;   Hatch  va.  Taylor,  845;  Bryant  va. 

Moore,  M.'i5. 
party  dealing  with  must  ascertain  hia  authority:    Towle  va.  Leavitt, 
858. 


IlSTDBX.  746 

Special  Agbwt— Continued 

how  far  acts  of,  are  binding  on  principal:    Id, 
ratification  of  act  of:    Smith  vs.  Tracy,  154. 
SPECIAL  INSTRUCTIONS, 

can  not  limit  authority  of  general  agent:    Insurance  Co.  r«.  McCain, 
299. 
SPECIFIC  PERFORMANCE, 

of  contract  of  agency  not  granted:    Alxcorth  va.  Seymour,  814. 
of  contract  of  sale,  mutuality  when  necessary:    Bolton  va.  Lambert, 
222. 
STATUTE, 

governing  liability  to  servants  and  laborers,  how  construed:     WaJee- 
field  vs.  Fargo,  4. 

STATUTE  OF  FRAUDS, 

"  lawfully  authorized"  under:  McClintock  vs.  OQ  Co.,  219. 

STATUTE  OF  LUiHTATIONS, 

when  begins  to  run  against  agent:  Jett  vs.  Hempstead,  496. 

agent's  fraud  will  prevent  running  of  statute:  Id. 

when  runs  against  factor:  Cooley  vs.  Betta,  703. 
STOCKHOLDER, 

liability  of,  for  debts  due  servants:  Wakefield  va.  Fargo,  4. 

SUB-AGENT, 

authority  to  appoint:  See  Delegation. 

liability  of  agent  for  his  acts:  Exchange  Nat.  Bank  va.  Third  Nat.  Bank, 
239;  Cummins  vs.  Eeald,  247;  Barnard  vs.  Coffin,  249. 

usage  may  justify  appointment  of:  Warner  vs.  Martin,  678. 
SUE, 

right  of  agent  to  sue  upon  contract  made  by  him:  Rowe  vs.  Rand,  257; 
Rhoades  vs.  Blackiston,  564;    Thompson  va.  Kelly,  653;   Fairlie  vs, 

Fenton,  6G0. 
SUIT,  (See  Action.) 

effect  of  bringing,  to  ratify  contract:  Shoninger  vs.  Peahody,  179. 

TENDER  OF  SERVICES, 

necessity  for  by  agent  wrongfully  discharged:    Howard  va.  Daly,  626. 

TERMINATION  OF  AGENCY, 

mere  agency  may  be  terminated  at  any  time  by  principal:    Howe  va. 
Rand,  257. 
or  renounced  by  agent:    Rowe  va.  Rand,  357. 
unless  coupled  with  an  interest,  authority  of  agent  is  revocable  at  any 
time:    Chambers  vs.  Seay,  252;  Blackstone  vs.  Buttermore,  255;  Mis- 
souri vs.  Walker,  277;  Wilcox  dt  Gibbs  Sewing  Mach.  Co.  vs.  Ewing, 
283;  Jacobs  vs.  Warfleld,2Q1;  Stbbald  vs.  Bethlehem  Iron  Co.,  SOI; 
Alworth  vs.  Sejjmour,  314;  Hunt  vs.  Rousmanier,  322. 
fact  that  it  is  called  "  irrevocable  "  or  "  exclusive  "  makes  no  differ- 
ence:   Chambers  vs.  Seay,  253;  Blackstone  vs.   Buttermore,  255. 
what  constitutes  a  power  coupled  with   an   interest:     Hmit  vs. 
Rousmanier,  323;  Chambers  vs.  Seay,  252;  Blackstone  vs.  Butter- 
more, 255;    Standard    Oil  Co.  vs.   Gilbert,  273;    MissouH  va. 
Walker.  277. 


746  Index. 

•^^•vrNATiON  OF  AOENCT— Continued. 

wntract  for  fixed  time,  what  amounts  to:    Rhodes  vs.  Foncood,  259; 
Turner  vs.  Goldsmith,  266;  Leivis  vs.  Insurance  Co.,  269;  Standard 
Oil  Co.  vs.  Gilbert,  273;  Norton  vs.  Cowell,  291. 
damages  for  wrongful  termination:    Standard  Oil  Co.  vs.  Gilbert,  278; 

Silhald  vs.  Bethlefiem  Iron  Co..  801;  Durkeevs.  Gunn,  312, 
Bale  of  property  by  principal  terminates  Belling  agent's  authority: 

Ahem  vs.  Baker,  288. 
justification  for,  engaging  in  rival  business:   Dieringer  vs.  Meyer,  289. 

drunkenness:  Bass  Furnace  Co.  vs.  Glasscock,  ;2'J1. 
notice  of,  must  be  given:    Clafin  vs.  Lenheim,  294;   Insurance  Co.  vs. 
McCain,  299;  Wheeler  vs.  JUcGuire,  362. 
how  given:  Clajlin  vs.  Lenheim,  294. 

contructive  notice,  what  amounts  to:  Clajlin  vs.  Lenheim,  294. 
question  for  court  or  jury,  when:  Id. 
Injunction  against,  when  granted:  Cort  vs.  Lassard,  316, 
death  terminates  unless  coupled  with  an  interest:  Hunt  vs.  Rousmanier, 

322;  Knapp  vs.  Alvord,  328;  Weber  vs.  Bridgman,  331. 
no  damages  for  termination  by  death:    Griggs  vs.  Swift,  587. 
insanity  of  principal  terminates  agency:  Matthiessen  Co.  vs.  McMahon, 

835. 
war  terminates  agency:  Insurance  Co.  vs.  Davis,  386. 
TESTIMONY,  (See  Evidence.) 

of  agent  as  to  his  authority:  Howe  Machine  Co.  vs.  Clark,  107. 

TORT,  (See  Master.) 

liability  of  agent  to  third  persons:  Delaney  vs.  Eochereau,  514;  Osborne 
vs.  Morgan,  518;  Stephens  vs.  Elwall,  226. 
TROVER,  (See  ConversiOxV.) 

when  ag»nt  liable  in:  Laverty  vs.  Snethen,  486;  Stephens  vs.  Elwall, 
226. 
TRUST  FUNDS, 

principal  may  follow  and  recover  bo  long  as  they  can  be  identified: 
Farmers'  Bank  vs.  King,  590;  Baker  vs.  New  York  Bank,  596;  Boston 
vs.  Simmons,  598. 
liability  of  attorney  for  loss  of  when  deposited  in  his  own  name:  Nalt- 
ner  vs.  Dolan,  623. 
TRUSTEE, 

how  differs  from  agent:  Rowe  vs.  Rand,  267. 

when  agent  will  be  charged  as  trustee  for  principal:  Davis  vs.  Hamlin, 

401;  Gardner  vs.  Ogden,  465. 
not  permitted  to  buy  tlie  trust  estate:  Gardner  vs.  Ogden,  466. 
UNAUTHORIZED  ACTS, 

ratifjcation  of:    See  RATIFICATION. 
UNAUTHORIZED  CONTRACT,  (See  Warranty  of  AuTnoRmr.) 

liability  of  agent  upon:    Krocger  vs.  IHtcaim,  501;  Simmons  vs.  More, 
505;  Patterson  vs.  Lipjjincott,  507;  I'eters  vs.  Farnsworth,  387. 

uni)Isc;losed  puiNCirAL, 

liiiljle  when  discovered:    Paterson  vs.   Oandasequi,  645;  Addison  vs. 
Qandasequi,  647;  Thompson  vs.  Davenport,  647;  Irvine  vs.  Watson, 


Undisclosed  PrinctpaI/— Continued. 

650;  Kayton  vs.  Bamett,  554;  Beymer  vs.  BonsaU,  654;  Cleveland  v$. 
Pearl,  656;  Byington  vs.  Simpson,  558. 
liable  for  purchases  by  agent:    Hubbard  vs.  Tenbrook,  867;  Watteau 

vs.  Fenunck,  367. 
right  to  sue  on  contract  made  by  agent:    Huntington  vs.  Knox,  687. 
right  to  sue  on  sealed  contract  made  by  agent:    Brigga  vs.  Partridge, 
436. 
UNDUE  INFLUENCE. 

by  attorney  on  client:  Stout  vs.  Smith,  628. 
UNINCORPORATED  ASSOCIATIONS,  (See  Clubs;  Societies;  PAfiTNKBr 

SHIP.) 

USAGE, 

effect  of,  in  aiding  interpretation  of  powers:    LeRoy  vs.  Beard,  882; 

Hibbard  vs.  Peek,  403, 
may  confer  power  to  warrant  goods  sold:  Pickert  vs.  Marston,  411. 
how  affects  powers  and  duties  of  factors:  Phillips  vs.  Moir,  671;  War- 
ner vs.  Martin,  678. 
evidence  of  in  fixing  attorney's  compensation:  Stanton  vs.  Embrey,  631. 

WAGES, 

servant  continuing  after  termination  of  term,  presumed  to  be  at  old 

wages:  Standard  Oil  Co.  vs.  Gilbert,  273. 
when  agent  wrongfully  discharged  may  recover:  Howard  vs.  Daly,  626; 

Ldddell  vs.  Chidester,  585. 

WAR. 

terminates  agency:  Insurance  Co.  vs.  Davis,  836. 

WAREHOUSEMEN, 

duty  as  to  delivery  of  goods:    Insurance  Co.  vs.  Kiger,  686, 

WARRANTY, 

authority  of  selling  agent  to  give:    Smith  vs.  Tracy,  154. 

given  by  special  agent,  not  binding:    Bryant  vs.  Moore,  855. 

covenant  of,  when  may  be  given  by  agent  to  sell  land:  LeRoy  va. 
Beard,  382;  Peters  vs.  Farnsworth,  387. 

of  personal  property,  when  agent  may  give:    Pickert  vs.  Marston,  411. 
WARRANTY  OF  AUTHORITY, 

agent  impliedly  makes  when:  Kroegervs.  Pitcaim,  501;  Simmons  vs. 
More,  505;  Patterson  vs.  Lippincott,  507;  Peters  vs.  Famsu-orth,  B81i 
Bush  vs.  Cole,  650. 

agent  liable  where  there  is  no  principal:    Lewis  vs.  TUton,  510. 

by  auctioneer:    Bush  vs.  Cole,  650. 
WHOLE  TIME, 

of  agent  when  belongs  to  principal:  Leach  vs.  Railroad  Co.,  480;  Die- 
ringer  vs.  Meyer,  289. 

WIFE, 

may  appoint  husband  her  agent:   Weisbrod  vs.  Railway  Co.,  81;  Nash 

vs.  Mitchell,  33. 
may  be  agent  for  her  husband:   Cox  is.  Hoffman,  89;   Benjamin  vs. 
Benjamin,  72. 


748  IlJDBX. 

WiFB— Continued. 

implied  agency  of:  Benjamin  vs.  Docl-Tiaw,  71, 

ratification  of  husband's  acts:  McLaren  va.  UaU,  77. 

ratification  by  of  husband's  contract:  McClintock  VA  OQ  Co.,  S19l 
"WRITTEN  AUTHORITY, 

when  necessary:  Long  vs.  Hartwdl,  93. 

unnecessary  to  act  in  principal's  presence  and  by  hla  directTon:  Gardner 
va.  Gardner,  100. 

to  be  construed  by  conrt:  Savings  Fund  Society  vs.  Savings  Bank,  871. 

strictly  construed:  Craighead  vs.  Peterson,  873. 
WRITTEN  INSTRUMENTS, 

ratification  by,  when  necessary:    HatcJcins  vs.  McGroarty,  167. 

liability  on,  not  discharged  by  parol:    Higgins  vs.  Senior,  458, 
"WRONGFUL  DISCHARGE. 

of  agent,  damages  for:    Howard  vs.  Daly,  526;  LiddeU  vs.  Chidester, 
535. 

action  for,  when  may  be  brought:    Id. 

termination  by  death,  is  not:    Griggs  vs.  Sicift,  637. 
YEARLY  HTRINQ, 

what  amounts  to:    Lidddl  vs.  Chidester,  585. 

when  general  hiring  deemed  to  be:    Standard  OU  Co.  vs.  QHbert,  278; 
Norton  v.  CoxoeU,  281. 


STANDARD    LAW    SCHOOL    CASE    BOOKS 

Administration    and    Government — Goodnow's   Cases   on    Government   and    Administra- 
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American    Administrative    Law — Goodnow's    Cases    on    American    Administrative    Law 
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now.     1    volume  $6.00  net. 
.Appellate    l»ructice — Sunderland's   Cases   on    Appellate    Pra<'tice,    by    Edson    R.    Sunder- 
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Bailments    and    Carriers — Goddard's    Cases    on    Bailments    and    Carriers,    by    Edwin    C. 
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Code    Pleading — Hinton's    Cases    Code   Pleading    Under    Modern    Codes,    by    Edwin    W. 

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Code    Pleading — Sunderland's    Cases    on    Code    Pleading,     by    Edson     R.    Sunderland, 

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Commercial  Law — Bays'  Cases  on  Commercial  Law  (in  preparation). 
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Criminal   Procedure — Sunderland's    Cases   on    Criminal    Procedure,    by    Edson    R.    Sun- 
derland,  Professor  of  Law  in   the  University   of  Michigan   Law   School.     $4.50  net. 
Damages — Russell's  Cases,   by   Isaac  Franklin    Russell.   Professor  of  Law   in   New  York 

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